[Senate Hearing 106-399]
[From the U.S. Government Publishing Office]
S. Hrg. 106-399, Pt. 3
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
on
CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY
__________
MAY 25, JUNE 15, JULY 12, and JULY 25, 2000
__________
Part 3
__________
Serial No. J-106-33
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Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
73-475 WASHINGTON : 2001
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
C O N T E N T S
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TUESDAY, MAY 22, 2000
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles, a U.S. Senator from the State of Iowa.... 1
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont,
prepared statement............................................. 98
Schumer, Hon. Charles, a U.S. Senator from the State of New York. 5
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1
PRESENTERS
Chambliss, Hon. Saxby, a U.S. Representative in Congress from the
State of Georgia............................................... 3
Cleland, Hon. Max, a U.S. Senator from the State of Georgia...... 9
Coverdell, Hon. Paul, a U.S. Senator from the State of Georgia... 4
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa.......... 8
Morella, Hon. Connie, a U.S. Representative in Congress from the
State of Maryland.............................................. 7
Moynihan, Hon. Patrick, a U.S. Senator from the State of New
York, prepared statement....................................... 100
Romero-Barcelo, Hon. Carlos, Resident Commissioner in Congress
from Puerto Rico............................................... 3
Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland... 2
INTRODUCTION OF NOMINEES
Bonnie J. Campbell............................................... 90
Jay A. Garcia-Gregory............................................ 90
Daniel Marcus.................................................... 11
Beverly B. Martin................................................ 91
Laura Taylor Swain............................................... 91
TESTIMONY OF NOMINEES
Statement of Bonnie J. Campbell, of Iowa to be U.S. Circuit Judge
for the Eighth Circuit......................................... 90
Biographical Information..................................... 102
Responses to Questions from:
Senator Ashcroft......................................... 319
Senator DeWine........................................... 324
Senator Sessions......................................... 312
Senator Smith............................................ 321
Senator Thurmond......................................... 318
Statement of Jay A. Garcia-Gregory, of Puerto Rico, to be U.S.
District Judge for the District of Puerto Rico................. 90
Biographical Information..................................... 165
Responses to Questions from:
Senator Ashcroft......................................... 325
Senator Hatch............................................ 325
Senator Sessions......................................... 327
Senator Smith............................................ 330
Senator Thurmond......................................... 324
Statement of Daniel Marcus, of Maryland to be Associate Attorney
General of the United States................................... 11
Biographical Information..................................... 22
Responses to Questions from:
Senator Hatch............................................ 309
Senator Sessions......................................... 312
Statement of Beverly B. Martin, of Georgia, to be U.S. District
Judge for the Northern District of Georgia..................... 91
Biographical Information..................................... 207
Responses to Questions from:
Senator Ashcroft......................................... 337
Senator Sessions......................................... 339
Senator Smith............................................ 342
Senator Thurmond......................................... 336
Statement of Laura Taylor Swain, of New York, to be U.S. District
Judge for the Southern District of New York.................... 91
Biographical Information..................................... 261
Responses to Questions from:
Senator Ashcroft......................................... 347
Senator Hatch............................................ 345
Senator Sessions......................................... 348
Senator Smith............................................ 351
Senator Thurmond......................................... 346
SUBMISSIONS FOR THE RECORD
Dovalina, Rick, National President, League of United Latin
American Citizens, Washington, DC, letter to Senator Leahy, May
22, 2000....................................................... 333
Ferre, Luis A., Republican National Committee, San Juan, PR,
letter to Senator Hatch, April 26, 2000........................ 334
Kyl, Hon. John, a U.S. Senator from the State of Arizona, letter,
May 10, 2000................................................... 333
Mirabal, Manuel, Chair, National Hispanic Leadership Agenda,
Washington, DC, letter to Senator Hatch, May 24, 2000.......... 336
Misla-Aldarondo, Hon. Edison, Speaker, Puerto Rico House of
Representatives, San Juan, PR, letter to Senator Hatch, May 2,
2000........................................................... 335
Rivera, Jose, National Chairman, Republican National Hispanic
Assembly, Washington, DC, letter to Senator Hatch, May 5, 2000. 333
Rossello, Hon. Pedro, Governor of Puerto Rico, and Hon. Carlos
Romero-Barcelo, Resident Commissioner of Puerto Rico, San Juan,
PR, letter to President Clinton, February 14, 1997............. 335
Velazquez, Alice M., National President, Hispanic National Bar
Association, and George Herrera, President and Chief Executive
Officer, U.S. Hispanic Chamber of Commerce, Washington, DC,
letter to Senator Hatch, May 9, 2000........................... 334
THURSDAY, JUNE 15, 2000
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 355
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont,
prepared statment.............................................. 363
PRESENTERS
Allen, Hon. Thomas H., a U.S. Representative in Congress from the
State of Maine................................................. 361
Baldacci, Hon. John E., a U.S. Representative in Congress from
the State of Maine............................................. 360
Bryan, Hon. Richard H., a U.S. Senator from the State of Nevada.. 357
Collins, Hon. Susan, a U.S. Senator from the State of Maine...... 359
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 361
Fitzgerald, Hon. Peter G., a U.S. Senator from the State of
Illinois....................................................... 362
Graham, Hon. Bob, a U.S. Senator from the State of Florida....... 366
Hyde, Hon. Henry, a U.S. Representative in Congress from the
State of Illinois.............................................. 363
Mack, Hon. Connie, a U.S. Senator from the State of Florida...... 367
Reid, Hon. Harry, a U.S. Senator from the State of Nevada........ 356
Snowe, Hon. Olympia J., a U.S. Senator from the State of Maine... 358
INTRODUCTION OF NOMINEES
John W. Darrah................................................... 368
Paul C. Huck..................................................... 368
Joan Humphrey Lefkow............................................. 368
Johnnie B. Rawlinson............................................. 368
George Z. Singal................................................. 369
TESTIMONY OF NOMINEES
Testimony of John W. Darrah, of Illinois, to be U.S. District
Judge for the Northern District of Illinois.................... 368
Biographical information and questionnaire................... 408
Responses to Questions from:
Senator Hatch............................................ 587
Senator Smith............................................ 584
Senator Thurmond......................................... 584
Testimony of Paul C. Huck, of Florida, to be U.S. District Judge
for the Southern District of Florida........................... 368
Biographical information and questionnaire................... 443
Responses to Questions from:
Senator Hatch............................................ 594
Senator Smith............................................ 592
Senator Thurmond......................................... 591
Testimony of Joan Humphrey Lefkow, of Illinois, to be U.S.
District Judge for the Northern District of Illinois........... 368
Biographical information and questionnaire................... 491
Responses to Questions from:
Senator Hatch............................................ 602
Senator Smith............................................ 599
Senator Thurmond......................................... 598
Testimony of Johnnie B. Rawlinson, of Nevada, to be U.S. Circuit
Judge for the Ninth Circuit.................................... 368
Biographical information and questionnaire................... 377
Responses to Questions from:
Senator Hatch............................................ 581
Senator Smith............................................ 577
Senator Thurmond......................................... 580
Testimony of George Z. Singal, of Maine, to be U.S. District
Judge for the District of Maine................................ 369
Biographical information and questionnaire................... 539
Responses to Questions from:
Senator Hatch............................................ 607
Senator Smith............................................ 605
WEDNESDAY, JULY 12, 2000
STATEMENTS OF COMMITTEE MEMBERS
Feingold, Hon. Russell, a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 619
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin,
prepared statement............................................. 618
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont,
prepared statement............................................. 617
Smith, Hon. Robert, a U.S. Senator from the State of Hampshire... 611
Torricelli, Hon. Robert, a U.S. Senator from the State of New
Jersey......................................................... 619
PRESENTERS
Graham, Hon. Bob, a U.S. Senator from the State of Florida....... 613
Lautenberg, Hon. Frank, a U.S. Senator from the State of New
Jersey......................................................... 612
Mack, Hon. Connie, a U.S. Senator from the State of Florida...... 615
McCollum, Hon. Bill, a Representative in Congress from the State
of Florida..................................................... 649
INTRODUCTION OF NOMINEES
Dennis M. Cavanaugh.............................................. 650
Glenn A. Fine.................................................... 620
James S. Moody, Jr............................................... 650
Gregory A. Presnell.............................................. 650
John E. Steele................................................... 650
TESTIMONY OF NOMINEES
Testimony of Dennis M. Cavanaugh, of New Jersey, to be U.S.
District Judge for the District of New Jersey.................. 650
Biographical information..................................... 660
Responses to Questions from:
Senator Sessions......................................... 816
Senator Thurmond......................................... 815
Testimony of Glenn A. Fine, of Maryland, to be Inspector General,
U.S. Department of Justice..................................... 620
Biographical information..................................... 624
Responses to Questions from:
Senator Thurmond......................................... 815
Testimony of James S. Moody, Jr., of Florida, to be U.S. District
Judge for the Middle District of Florida....................... 650
Biographical information..................................... 693
Responses to Questions from:
Senator Sessions......................................... 820
Senator Thurmond......................................... 819
Testimony of Gregory A. Presnell, of Florida, to be U.S. District
Judge for the Middle District of Florida....................... 650
Biographical information..................................... 734
Responses to Questions from:
Senator Sessions......................................... 824
Senator Thurmond......................................... 823
John E. Steele, to be U.S. District Court Judge, of Florida, to
be U.S. District Judge for the Middle District of Florida
Biographical information..................................... 770
Responses to Questions from:
Senator Sessions......................................... 828
Senator Thurmond......................................... 827
TUESDAY, JULY 25, 2000
STATEMENTS OF COMMITTEE MEMBERS
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 833
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 839
PRESENTERS
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 833
Pastor, Hon. Ed, a U.S. Representative in Congress from the State
of Arizona..................................................... 834
INTRODUCTION OF NOMINEES
Susan Ritchie Bolton............................................. 838
Mary H. Murguia.................................................. 837
Michael J. Reagan................................................ 837
James A. Teilborg................................................ 839
TESTIMONY OF NOMINEES
Testimony of Susan Ritchie Bolton, of Arizona, to be U.S.
District Judge for the District of Arizona..................... 838
Biographical information..................................... 847
Responses to Questions from:
Senator Sessions......................................... 1040
Testimony of Mary H. Murguia, of Arizona, to be U.S. District
Judge for the District of Arizona.............................. 837
Biographical information..................................... 905
Responses to Questions from:
Senator Grassley......................................... 1036
Senator Sessions......................................... 1037
Testimony of Michael J. Reagan, of Illinois, to be U.S. District
Judge for the Southern District of Illinois.................... 837
Biographical information..................................... 941
Responses to Questions from:
Senator Sessions......................................... 1033
Testimony of James A. Teilborg, of Arizona, to be U.S. Dirstrict
Judge for the District of Arizona.............................. 839
Biographical information..................................... 984
Responses to Questions from:
Senator Leahy............................................ 1045
Senator Sessions......................................... 1042
NOMINATIONS OF DANIEL MARCUS TO BE ASSOCIATE ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE; BONNIE J. CAMPBELL (U.S. CIRCUIT JUDGE); JAY A.
GARCIA-GREGORY, BEVERLY B. MARTIN, AND LAURA TAYLOR SWAIN (U.S.
DISTRICT JUDGES)
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THURSDAY, MAY 25, 2000
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:00 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions
presiding.
Also present: Senators Grassley and Schumer.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Senator Sessions. The committee will come to order.
Our first panel will be Senators and Congressmen who may be
introducing nominees, and we would be glad to have them have a
place at the table and come up. We will start with the circuit
nominee and then go according to the list Senator Hatch has
given me, or any other agreement you might have on your time, I
would be glad to try and accommodate you.
Senator Grassley is a distinguished member of this
committee. Senator Grassley, we are glad to have you here and
we would be delighted to hear your comments at this time.
STATEMENT OF HON. CHARLES GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Well, I want to introduce Bonnie
Campbell. She is a nominee for the Eighth Circuit Court of
Appeals, and that includes Iowa.
Ms. Campbell has broad experience in a number of areas of
law, both private and public. Her private practice experience
spanned a period of over six years, during which she primarily
focused on issues relating to family and employment
discrimination law.
Ms. Campbell's public service began in 1974, when she
worked for former Iowa Senator John Culver. Then in 1990, after
practicing in the private sector, she was elected Iowa's
Attorney General. Her tenure as Attorney General provided Ms.
Campbell an opportunity to become familiar with the workings of
the Federal appellate court system, serving as counsel to all
State agencies in the prosecution arm of State government in
cases appearing before Federal appellate court.
Ms. Campbell has personally monitored and participated in a
number of cases that have appeared before the Eighth Circuit
she is nominated for. As Attorney General of the State of Iowa,
she also aggressively prosecuted drug dealers and stalkers. In
addition, she championed victims' rights and tougher domestic
abuse laws.
Bonnie Campbell left the Attorney General's Office in 1995.
President Clinton appointed her as the first Director of the
Violence Against Women Office in the U.S. Department of
Justice, and she is serving in that position this very day.
As the Director of this Office, she is responsible for
working with U.S. attorneys to ensure enforcement of the new
Federal criminal statutes contained in the Violence Against
Women Act and related legislation seeking to transform the way
in which the criminal justice system responds to violent crimes
against women.
Ms. Campbell's stance on tougher domestic abuse laws and
the aggressive prosecution of drug dealers has earned her
nomination the endorsement of the Iowa State Police
Association, the largest police association in the State of
Iowa.
I thank you, Mr. Chairman, for this hearing, and you will
also hear from my colleague, Senator Harkin, in support of this
nomination as well.
Senator Sessions. Thank you very much, Senator Grassley.
Those remarks will be important for the record, and your
support for this nominee as a leading member of this committee
will be most important.
Senator Harkin, I don't believe is here yet. I will go down
our list. Senator Schumer is not here.
Senator Sarbanes.
STATEMENT OF HON. PAUL SARBANES, A U.S. SENATOR FROM THE STATE
OF MARYLAND
Senator Sarbanes. Well, thank you very much, Mr. Chairman.
I am pleased to introduce to the committee Daniel Marcus, who
has been nominated by the President to be the Associate
Attorney General, which, as you well know, is the number three
ranking position in the Department of Justice.
Dan Marcus is a thoroughgoing professional. He has had a
very distinguished legal career. He is an honors graduate of
Brandeis University and Yale Law School. He then clerked in the
District of Columbia Circuit Court of Appeals for Judge Harold
Leventhal, and then joined the firm of Wilmer, Cutler and
Pickering in 1966. And it is fair to say he has been there 32
years, with time out on occasion for Government service.
In the 1970's, he served in the Department of Health,
Education, and Welfare as Deputy General Counsel. Then he was
General Counsel for the Department of Agriculture in 1979 and
1980. He came back into government service a couple of years
ago, joining the Department of Justice a year ago, as the
Principal Deputy Associate Attorney General. He became the
Acting Associate Attorney General last October, and he has been
serving in that capacity ever since and we would like to just
strike the ``Acting'' from the title and get him confirmed as
the Associate Attorney General.
He is a distinguished citizen of Montgomery County, MD and
he has been very active in our community there. He has been a
chair of the D.C. Bar's Legal Ethics Committee, both a member
and chairperson, and has performed, I think, distinguished
public service in that capacity.
He knows this job; he has been doing it. He gets very high
marks for the performance, and I think he would be excellent,
obviously, in the position. I very much hope the committee will
find its way clear to confirm him, and give the Senate a chance
to pass on him as well.
Thank you very much.
Senator Sessions. Thank you, Senator Sarbanes. We
appreciate those comments and they will be considered by the
committee. Thank you so much.
Congressman Saxby Chambliss is next on my list. I don't
know how they did this; it usually follows the nominees, I
believe.
Congressman Chambliss.
STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA
Representative Chambliss. Well, thank you very much,
Senator. It is indeed a pleasure for me to be here today to
appear before this body to recommend Beverly Martin for a
position as U.S. District Judge in the Northern District of
Georgia.
Beverly is currently serving as the U.S. attorney in Macon,
GA, in the Middle District of Georgia, and unfortunately we are
going to be losing her, once the Senate proceeds through the
confirmation process, in Macon. And we hate to do that, but she
has done just a terrific job as U.S. attorney. She has been a
leader all across the country in fighting drug trafficking. She
has been on a number of task forces at the Attorney General's
direction.
I just can't recommend anybody higher than I recommend
Beverly Martin to you. She's not only a fine lawyer in and of
her own right, but she comes from good stock. Having practiced
law in Georgia for 26 years myself, her father and I practiced
against each other and with each other several different times,
and he is a very fine lawyer and she came from a great family,
as far as the legal profession is concerned.
It is indeed a privilege and a pleasure, Senator, for me to
recommend Beverly Martin to you.
Senator Sessions. Thank you very much, Representative
Chambliss. We appreciate that. I got a call today from my good
friend, the former U.S. attorney in Atlanta, Larry Thompson,
highly complimentary of the nominee. So I appreciate that.
Next, we have Resident Commissioner Carlos Romero-Barcelo,
from Puerto Rico.
We would be glad to hear your comments.
STATEMENT OF HON. CARLOS ROMERO-BARCELO, RESIDENT COMMISSIONER
IN CONGRESS FROM PUERTO RICO
Commissioner Romero-Barcelo. Thank you, Mr. Chairman. I
appear before you today to introduce, and also strongly
support, the nomination of Jay Garcia-Gregory to the Federal
bench of the U.S. District Court for the District of Puerto
Rico.
Mr. Garcia-Gregory's qualifications are first-grade. He is
a member of the Bar of the General Court of Justice of Puerto
Rico and the U.S. District Court for the District of Puerto
Rico. He is also a member of the U.S. Supreme Court bar. His
experience includes the management of complex civil litigation
before the U.S. District Court for Puerto Rico.
Throughout his extensive and distinguished legal career,
Mr. Garcia-Gregory has represented clients in admiralty,
aviation, and telecommunications law; unfair competition and
copyright infringement cases; corporate, tax, labor, contracts,
and administrative law; antitrust, RICO, and securities cases;
and in constitutional law and civil rights litigation.
He has held several positions of responsibility with the
U.S. District Court for the District of Puerto Rico, and his
wide-ranging legal expertise also includes 7 years as an active
member of the New York Stock Exchange Arbitration Panel, in
which he presides over numerouscomplex securities arbitration
hearings.
Mr. Garcia-Gregory is also one of those rare individuals
who, by virtue of his integrity and unassailable character and
impeccable legal reputation, enjoys the enthusiastic
endorsement of Puerto Ricans across the political spectrum--the
Governor of Puerto Rico, the Speaker of the House of
Representatives. The Governor is a Democrat, the Speaker of the
House is a Republican; they both endorse him strongly. The
oldest State chair of the Republican Party, Don Luis Ferrer,
who is 97 years old, endorses him enthusiastically. I endorse
him. So he has the endorsement of both sides because of his
reputation.
He is one of the seven judgeships to be appointed in Puerto
Rico, and since June 1, 1994, where we haven't had a judge for
the seventh position. And needless to say the calendar of the
court is very, very loaded, and I think all of the judges on
the court are very eager to see Jay Garcia-Gregory join them on
the bench. They all support him very strongly. In my opinion,
this is one of the best appointments that has ever been made
for the court in Puerto Rico, and I strongly support him.
Thank you, Mr. Chairman.
Senator Sessions. Well, thank you very much for sharing
that insight, Commissioner Romero-Barcelo. You are free to stay
with us, or if you need to leave, that would be fine, also.
Senator Coverdell, we are delighted to have you and hear
your comments at this time.
STATEMENT OF HON. PAUL COVERDELL, A U.S. SENATOR FROM THE STATE
OF GEORGIA
Senator Coverdell. It is good to be with Chairman Sessions
of Alabama. Mr. Chairman, I am pleased to join my colleague,
who will be here very shortly, Senator Cleland, in recommending
to you and the committee Beverly Martin to sit on the U.S.
District Court for the Northern District of Georgia.
Ms. Martin is not only extremely qualified to serve on the
Federal bench, but she is also thought very highly of in
Georgia's legal community. Ms. Martin has a fine background
which Senator Cleland--we have conspired not to repeat
everything before the committee, and so I won't go into the
background that he will expand upon in his remarks.
As the record will show, Ms. Martin has an outstanding
history of legal service and achievement. She has been a
dedicated public servant since becoming assistant attorney
general for the State of Georgia in 1984. Ms. Martin currently
serves as U.S. attorney in the Middle District of Georgia. She
comes from a family with a history of involvement in the
community and with the law. Her dedication will no doubt carry
over to her service on the Federal bench.
Ms. Martin's record has been noticed in Georgia. Since she
was nominated, I have been most impressed with the tremendous
outpouring of support I have received from Georgia's legal
community on her behalf. She is thought highly of by everyone
who has worked with her, and I have heard nothing but positive
words about her nomination and how she would perform as a
Federal judge. Her record and her reputation in Georgia and her
dedication to her work lead me to believe she will serve
honorably on the Federal bench.
Mr. Chairman, I highly recommend Ms. Martin to the
committee and respectfully request her confirmation move
forward. I think Ms. Martin is an excellent nominee, and that
the committee will do a great service to the Federal judiciary
by confirming her.
Just in closing, let me say that the recommendations have
not only been many, but the personalities from home State that
have spoken up on behalf of Ms. Martin I include among the most
exemplary citizens of the State of Georgia, which is a very
moving thing and a very important thing, and I want to share
that with the committee.
Senator Sessions. Thank you. I have heard some of those
comments.
Senator Schumer is our ranking member. Does he have a
statement now? And then we will hear from Representative
Morella.
STATEMENT OF HON. CHARLES SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you very much, Mr. Chairman, and I
just want to thank Senator Hatch, as well as my committee
mates, for again helping New York with our judicial needs.
I want to thank our ranking member, Senator Leahy, for
working so hard on behalf of so many of the nominees. Behind
the scenes, Senator Leahy has worked quietly to help all of us
move our nominees. And sometimes he doesn't get as much credit
as he should, so I want to thank him publicly for everything he
has done.
Mr. Chairman, I am proud today to introduce to the
committee Laura Taylor Swain, a wonderful New Yorker who will
make a great district court judge. She is currently a
bankruptcy judge in the Eastern District of New York, and has
now been nominated to fill a vacancy across the river in the
Southern District.
Judge Swain's background and achievements as both a
practitioner of law and as a bankruptcy judge make her a
perfect candidate to be a Federal judge. She was born and
raised in Brooklyn, my old stomping ground, and then attended
Harvard College and Harvard Law School, two more of my stomping
grounds, although I like to say, Mr. Chairman, the best thing
about going to Harvard is when someone saysthey went to
Harvard, you are not impressed. Because they took you, they could take
almost anybody. [Laughter]
After law school, Judge Swain accepted a judicial clerkship
with the Hon. Constance Baker Motley, one of New York's great
jurists and a trailblazer not only as a judge, but as a New
York State Senator and Manhattan Borough President.
Following the clerkship, Judge Swain joined one of New
York's top law firms, Debevoise and Plimpton. While in private
practice, Judge Swain worked on large and difficult cases for
major corporate clients, such as Uniroyal and Cable Vision. She
spent more than 12 years at the Debevoise firm and became an
expert on ERISA.
I will just editorialize a little that, for those who don't
know, ERISA is one of the most complicated and difficult areas
of the law. Those who work in this area are usually known as
exceptional lawyers. Those who become experts in it are the
cream of the crop, and Judge Swain was just that.
Since 1997, she has served with distinction as a judge on
the U.S. Bankruptcy Court for the Eastern District. Not
surprisingly, the matters that come before the bankruptcy
courts in New York are among the most challenging in the
Nation. They often involve vast financial concerns, millions of
dollars in assets, and the most sophisticated counsel.
While managing a docket of over 6,000 cases, Judge Swain's
task has been to unravel intricate commercial transactions,
reorganize ongoing corporate ventures, and most importantly do
justice to all involved, creditors and debtors alike. And by
all accounts, Judge Swain has done a masterful job at this
difficult and sometimes unforgiving work.
There is much more that I could say about the judge in her
legal capacity, but I will just ask that my statement be put in
the record.
Finally, I would like to say, because I think it is
important when we nominate people for judges that they have
complete records, not simply in the legal profession, I want to
just praise her for her outside activities. She has been very
active in her church, the Grace Episcopal Church, in New York,
and in the church's school and community outreach efforts.
She has served as a member of the Board of Trustees of the
New York Diocese of the Episcopal Church, and a member of the
Board of Trustees of Episcopal Charities. Somehow, she even
found time to sing in a well-known performance choir. I only
wish we could hear her display this talent here, Mr. Chairman,
as we consider her legal acumen.
To conclude, Mr. Chairman, Judge Swain will make an
outstanding district judge, as she has as a bankruptcy judge,
and will serve the people of New York and the Nation well on
the bench.
I thank you and all of those here today for their time.
Senator Sessions. Thank you, Senator Schumer. I know you
care deeply about an extraordinary bench in New York and you
work hard to achieve that.
Senator Schumer. Thank you.
Senator Sessions. Representative Connie Morella, we are
delighted to have you.
STATEMENT OF HON. CONNIE MORELLA, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND
Representative Morella. Thank you. It is a pleasure to be
over here on this side.
Mr. Chairman, Senator Schumer, I am very pleased to appear
before you this afternoon on behalf of my constituent, Daniel
Marcus, whom the President has nominated to be Associate
Attorney General, and who has been serving in that capacity as
Acting Associate Attorney General since October 29, 1999.
In his role, he is responsible for the oversight and
coordination of the civil litigating components of the
Department, overseeing the Antitrust, Civil, Civil Rights,
Environment and Natural Resources, as well as Tax Divisions,
very important areas, as well as the Department's grant-making
process. On February 28, President Clinton nominated Mr. Marcus
to be Associate Attorney General--good judgment.
Immediately prior to joining the Department, Mr. Marcus was
senior counsel in the Office of Counsel to the President, and
then before that he was a partner in the prestigious
Washington, DC, law firm of Wilmer, Cutler and Pickering, where
he had a general regulatory practice with particular emphasis
on food and drug regulation and related litigation.
He is a graduate of Brandeis and Yale Law School, wherehe
was an editor of the Yale Law Journal. Following his graduation from
law school, he clerked for Judge Harold Leventhal, of the U.S. Court of
Appeals for the District of Columbia Circuit.
He joined Wilmer, Cutler and Pickering in 1966 and became a
partner in 1973. From 1977 to 1979, he served as the Deputy
General Counsel of the U.S. Department of Health, Education,
and Welfare. From 1979 to 1980, he served as General Counsel to
the U.S. Department of Agriculture.
In 1981, Mr. Marcus returned to Wilmer, Cutler and
Pickering as a partner, and he served as the firm's ethics
partner from 1991 to 1995. And from 1995 to 1998, he was a
member of the firm's management committee. He was also the
chairman of the D.C. Bar Legal Ethics Committee from 1995 to
1997. That impresses me enormously.
I am particularly impressed by Mr. Marcus' enthusiasm for
public service and his commitment to the mission of the
Department of Justice. We have discussed that at great length.
Having relinquished private sector law as a partner in a
distinguished, profitable firm to serve our country at a time
of concern about public service brain drain, I think Mr. Marcus
stands out as a real beacon, a real role model.
He also displays stability and good judgment by living in
Montgomery County, MD, my district, for 33 years, and raising
his family there, obviously inspiring his two sons who became
successful lawyers. He and Mrs. Marcus are blessed also with
two and three-quarters grandchildren.
Clearly, Mr. Marcus has a great variety of in-depth legal
experience and an impressive resume, and, I believe the
judicial temperament, the enthusiasm and people-oriented
dedication to serve us exceedingly well. I certainly hope that
the committee will move favorably on the President's nomination
of Mr. Marcus to serve as Associate Attorney General of the
United States.
Senator Sessions. Thank you very much, Congresswoman
Morella.
Mrs. Morella. A pleasure.
Senator Sessions. Those are very kind and generous
comments.
Mrs. Morella. I thank you, Mr. Chairman.
Senator Sessions. Thank you very much.
I see Senator Harkin is on a short timeframe, and Senator
Cleland.
Senator Cleland. I yield to my colleague.
Senator Sessions. The Senator from Iowa.
STATEMENT OF HON. TOM HARKIN, A U. S. SENATOR FROM THE STATE OF
IOWA
Senator Harkin. Thank you, Mr. Chairman. I appreciate that.
I am on the floor now as a co-manager with Senator Lugar on the
crop insurance bill, and I wanted to take the time to come over
here. So I appreciate my colleague, Senator Cleland, letting me
go ahead.
Senator Sessions. We both care about that bill.
Senator Harkin. I know we do. I have got to get back to
handle that.
Mr. Chairman, I am here obviously on behalf of a friend of
20 years, Bonnie Campbell, for the eighth circuit. But I just
wanted to add a little postscript to what Congresswoman Morella
was saying. It is a double pleasure for me to be here today
because Dan Marcus is an old friend.
As a matter of fact, my wife is not here to testify, but if
she were, she would put an exclamation point on everything that
Congresswoman Morella said because Dan Marcus was her first
boss. So she worked for him for a long time and is still
singing his praises today. So he, again, is an excellent choice
for the position of Associate Attorney General.
Mr. Chairman, it is my honor to be here to introduce and
give my support to an Iowa constituent and, as I said, a friend
of over 20 years, Bonnie J. Campbell, who has been nominated
for the U.S. Court of Appeals for the Eighth Circuit. I believe
she would serve in this position with honor and fairness and
distinction.
Bonnie Campbell has had a long and distinguished service to
our country. First, she has a deep appreciation for Congress
and how we operate because she started her career here back in
the 1970's with our former colleague, Senator John Culver.
After law school, she started in 1984 with a private practice
in Des Moines, where she worked on cases involving medical
malpractice, employment discrimination, personal injury, real
estate, and family law.
She was then elected attorney general of Iowa in 1990, the
first woman to ever hold that position in our State. She
managed in that position an office of some 200 people,
including 120 attorneys handling a wide variety of criminal and
civil matters for State agencies and officers. As attorney
general, she gained high marks from all ends of the political
spectrum as someone who was strongly committed to enforcing the
law, to reducing crime, and to protecting consumers.
In 1995, she was appointed as the Director of the Violence
Against Women Office in the Department of Justice. In that
position, she played a critical role in the implementation of
the violence against women provisions ofthe 1994 Crime Act.
Again, she has repeatedly won respect from a wide range of interests
with different points of view on this issue. She has been, and remains,
responsible for the overall coordination and agenda of the Department
of Justice's efforts to combat violence against women.
As I said, Mr. Chairman, I have known Bonnie and Ed
Campbell for over 20 years. She is a person of unquestioned
integrity, keen intellect, and outstanding judgment. She also
has a great sense of fairness and evenhandedness. These are the
qualities, I believe, and her significant experience, that make
her an ideal candidate for this important position.
Her nomination has been strongly supported by many, many of
her colleagues, including the current Iowa attorney general and
the president of the Iowa State Police Association, and the
approval of the American Bar Association.
Finally, I might just add, Mr. Chairman, we do need a
judicial system that truly reflects the diversity of this
Nation. We need more women who are qualified on the bench at
all levels. So for all these reasons, Mr. Chairman, I urge you
and the committee to promptly report her nomination favorably
to the floor of the Senate.
I know that Bonnie Campbell is here today with her husband,
Ed Campbell--again, as I said, two longtime and close personal
friends of mine. I have admired them both greatly through the
years for their service to our country, to their local
community, and to our State of Iowa. You couldn't find a better
person to serve in this position on the court of appeals than
Bonnie Campbell, Mr. Chairman.
Senator Sessions. Thank you very much, Senator Harkin. We
appreciate those comments and they will definitely be
considered by this committee.
Senator Harkin. I appreciate that. Thank you, Mr. Chairman.
Senator Sessions. Senator Cleland from Georgia.
STATEMENT OF HON. MAX CLELAND, A U.S. SENATOR FROM THE STATE OF
GEORGIA
Senator Cleland. Thank you very much, Mr. Chairman. I would
like to have Beverly Martin join me up here.
Beverly, would you just come up here and sit for a while?
We are delighted to be here, Mr. Chairman, and it is my
pleasure to introduce to the committee Ms. Beverly Martin,
currently the U.S. Attorney for the Middle District of Georgia.
Senator Sessions. Well, that is a plus.
Senator Cleland. Yes, it is.
Senator Sessions. I was honored to have that time one time.
Senator Cleland. Yes, and she does a marvelous job. She is
currently the U.S. Attorney for the Middle District of Georgia
and the President's nominee to the U.S. District Court for the
Northern District of Georgia.
I am pleased that Senator Coverdell, who has already been
here and said some wonderful things about Beverly, joins me
with this presentation. I am also pleased to welcome Ms.
Martin's father, Mr. Baldwin Martin. On her father's side, Ms.
Martin is the fourth generation lawyer to practice in Georgia.
Both her grandfather and her great grandfather served as
chairman of the Board of Trustees of Mercer University in
Macon, GA.
Beverly Martin is extremely qualified for appointment to
the Federal bench. She has worked in private practice and has
also held posts in State and Federal Government offices. She
has distinguished herself as a litigator, a public prosecutor,
and a public servant throughout her career in Georgia. I am
very proud to recommend her today.
Ms. Martin is a native of Macon, GA. She attended Mercer
University before receiving her undergraduate degree from my
alma mater, Stetson University, in Deland, FL. I often say that
my alma mater, Stetson, did two great things for me. They let
me in and they let me out. [Laughter.]
She attained her J.D. from the University of Georgia School
of Law in 1981. Ms. Martin was an associate attorney in the law
firm of Martin, Snow, Grant, and Napier, in Macon, from 1981 to
1984, a law firm founded by her great grandfather.
From 1984 to 1994, Ms. Martin served as Assistant Attorney
General in the Office of Georgia's Attorney General. At the
Attorney General's Office, she represented the State of Georgia
in civil litigation, and also served as the Division Director
for the Business and Professional Regulation Division. In 1994,
Ms. Martin joined the U.S.Attorney's Office in the Middle
District of Georgia as a Federal prosecutor of both narcotics and
general offenses.
In 1997, Ms. Martin was nominated by President Clinton and
confirmed by the Senate to become the U.S. attorney for the
Middle District, where she currently serves. As U.S. attorney,
Ms. Martin oversees approximately 60 employees and the legal
work of the United States of America in 70 Georgia counties.
Ms. Martin was appointed by the Attorney General to be a
member of the Attorney General's Advisory Council for a 2-year
term beginning in January of last year. She was also selected
by her peers to be the chair of the Executive Committee of the
Advisory Council for the Organized Crime Drug Enforcement Task
Force in the Southeast Region of the United States.
Ms. Martin was selected as one of the two Women of
Achievement by Career Women's Network last year. She was also
named by her high school as Alumni of the Year last year. She
serves on the Board of Directors of the Macon State College
Foundation and is a member of the Steering Committee for
Macon's Executive Forum.
Ms. Martin is a member of the State Bar of Georgia, the
Macon Bar, and the Lawyer's Club of Atlanta. She is also a
Master in the William Augustus Booth Inn of Court and is
admitted to practice before the Federal District Courts for the
Northern, Middle and Southern Districts of Georgia, the
Eleventh Circuit Court of Appeals, and the U.S. Supreme Court.
She is an excellent attorney and will be an outstanding
addition to the Federal bench. She cares deeply about her State
and her country. She loves her work, and she has served the
State of Georgia for over 15 years as a Federal prosecutor in
the Georgia Attorney General's office, assistant U.S. attorney,
and U.S. attorney. She demonstrates the personal and
professional qualities that will make her an outstanding
Federal judge. I highly recommend Ms. Beverly Martin to the
committee and the U.S. Senate, and urge that she be promptly
confirmed.
Thank you very much, Mr. Chairman.
Senator Sessions. Thank you very much, Senator Cleland.
Thank you for those remarks, and I know you care deeply about
having quality people on the bench in Georgia.
Senator Cleland. Thank you, sir.
Senator Sessions. Thank you.
Our Judiciary Committee today is holding its fifth
nominations hearing of the second session of the 106th
Congress. We will hear from one Justice Department nominee, one
judicial nominee who has been nominated to be a U.S. circuit
judge, and three judicial nominees who have been nominated for
U.S. district judges.
We will have three panels this afternoon. The first will
consist of the sponsors of the nominees. We have just had that.
Then the second panel will consist of Mr. Daniel Marcus, who
has been nominated to be Associate Attorney General. Our final
panel will consist of the judicial nominees Bonnie J. Campbell,
of Iowa, to be U.S. Circuit Judge for the Eighth Circuit; Jay
A. Garcia-Gregory, of Puerto Rico, to be U.S. District Judge
for Puerto Rico; Beverly B. Martin, of Georgia, to be U.S.
District Judge for the Northern District of Georgia; and Laura
Taylor Swain, of New York, to be U.S. District Judge for the
Southern District of New York.
Mr. Marcus, I believe you are first up. Please join us.
I will need to take your oath, if you would raise your
right hand.
Do you solemnly swear that the testimony you shall give in
this hearing shall be the truth, the whole truth, and nothing
but the truth, so help you God?
Mr. Marcus. I do.
Senator Sessions. If you have any family members or friends
you would like to introduce, Mr. Marcus, we would be delighted
to have you do that at this time.
TESTIMONY OF DANIEL MARCUS, OF MARYLAND, TO BE ASSOCIATE
ATTORNEY GENERAL OF THE UNITED STATES
Mr. Marcus. Well, thank you, Mr. Chairman. Congresswoman
Morella did a little head start for me on that, but let me
introduce, sitting in the front row here, my wife, Maeva
Marcus, who has supported me and borne with me for the last 35
years; my son, Jonathan, who is a career lawyer in the Justice
Department, in the Criminal Division; his wife, Phyllis, who is
a career lawyer at the Federal Trade Commission.
Our daughter, Stephanie, could not be here today because
before this hearing was scheduled, she planned a week at the
beach with her husband and her little girl.
Senator Sessions. She has her priorities straight.
[Laughter.]
Mr. Marcus. The real stars of the family, our two
granddaughters, are a little too young to be here today. They
are age 2 and age 1, but pictures are available after the
hearing. [Laughter.]
Senator Sessions. We would be glad to hear any remarks that
you would like to make.
Mr. Marcus. Thank you. I will be brief.
Thank you, Mr. Chairman. It is a great honor for me to
appear here today. I am grateful to the President fornominating
me, and to the Attorney General for all her support and encouragement.
I am also grateful to you, Mr. Chairman, and to the other members of
this committee for considering my nomination to be Associate Attorney
General. And special thanks to Senator Sarbanes and Congresswoman
Morella for taking time from their busy schedules to stop by and say
some kind words about me.
As you can tell from my resume and the comments of Senator
Sarbanes and Congresswoman Morella, I have spent my entire
legal career here in Washington, more years than I would like
to remember. The bulk of that time has been spent in private
practice at the firm of Wilmer, Cutler, and Pickering, although
I was privileged to be nominated by President Carter and
confirmed by the Senate to be General Counsel of the Department
of Agriculture in 1979.
But for me, as for many lawyers in Washington, I think, the
Department of Justice has always represented the best that our
Nation has to offer as an opportunity for public service for
lawyers. So I responded with alacrity last year when Ray Fisher
asked me to come over to the Justice Department and be his
principal deputy. Since last October, when Mr. Fisher, with the
blessing of this committee, went on to become a judge on the
Court of Appeals for the Ninth Circuit, I have had the honor of
serving as Acting Associate Attorney General.
The Associate Attorney General, as you know, supervises
five of the six litigating divisions of the Department--the
Antitrust Division, the Civil Division, the Civil Rights
Division, the Environment and Natural Resources Division, and
the Tax Division. I also supervise the Department's grant-
making agencies, the Office of Justice Programs and the COPS
office.
On a daily basis, it is inspiring and invigorating to work
not only with the leaders of those divisions and offices, many
of whom you know, but also with the dedicated and talented
career lawyers of the Department. Day in and day out, through
Republican and Democratic administrations, those career lawyers
provide representation to the people of the United States with
the highest standards of excellence and integrity. You have my
personal commitment that if I am confirmed as Associate
Attorney General, I will do everything I can to ensure that
those standards and those traditions are upheld.
Thank you again, Mr. Chairman, for considering my
nomination. I hope I will have the opportunity to continue to
work with this committee in furthering our common goal of
preserving and strengthening our American system of justice.
I would be happy to answer any questions that the committee
may have.
questioning by senator sessions
Senator Sessions. Thank you very much, Mr. Marcus. That was
a fine statement, and you correctly note the great traditions
of the Department of Justice and the need to maintain that. I
know the Department has had some rocky times in areas really
not in your area, but it is important everyday to make sure
that the acts that are taken are defensible legally and
otherwise.
I guess one of my first questions to you would be a
question you and I discussed when we had a very pleasant
discussion earlier, and that is are you capable and willing to
undertake the unpleasant duty sometimes of telling your
superiors and political higher-ups ``no.'' I mean, that is one
of the duties that a lawyer has to do and, to me, a high
official in the Department of Justice will be called upon to
express opinions or to approve or disapprove actions. You will
have a high position there.
Will you tell us here in this hearing that if you believe
it is wrong or not justified legally or morally or ethically
that you would say no and do what you can to avoid a bad
decision?
Mr. Marcus. I agree with you completely, Mr. Chairman, and
I will make that commitment. I think any lawyer who has had the
experience that I have had in private practice and in
Government knows that you have to be willing as a lawyer to
tell your clients on occasion, no, you can't do that, and I
think any lawyer worth his salt is prepared to do that.
Senator Sessions. Thank you.
I will just say this for all the nominees, for judges, of
course, this is the only chance that the public has to have
some insight into the background, the record, and the future
prospects of a nominee. Once confirmed for a judgeship, it is
lifetime appointment, not for you, Mr. Marcus, probably
fortunately. The Department of Justice can wear anybody out,
but it is a good place to be. At any rate, I would say that to
you, so we will perhaps ask some questions.
But I think it is also important to note for the record
that you have received the support of the President of the
United States. Most of you, if not all of you, have received
the support of the Senators from your States, and Congressmen
and others who support you. FBI background checks have been
conducted. The American Bar Association has done an analysis,
and the committee staff here has reviewed the records and all
the forms you have had to fill out, many of them quite long and
detailed, and we have evaluated those. So I don't think it is
necessary that we go over every issue, but I do think it is
appropriate that some questions might be asked.
Mr. Marcus, one area that was noted on Monday in the Wall
Street Journal falls under your area; that is, the COPS
program. According to the Journal, the program has
vastlyoverstated the number of policemen put on the street and has
ignored some very serious problems resulting from poor administration
and use of COPS grants.
Indeed, the Department of Justice's own Inspector General
determined in its most recent audit that only one-half of the
proclaimed 100,000 new officers have actually been deployed.
Moreover, even that figure is suspect because the COPS office
does not maintain an accurate tally of police officers actually
deployed on the street. It bolsters its figures by including
grants that have not even been accepted, let alone been used to
hire officers, and by counting equipment such as new radios as
equivalent to a certain number of offices. This program, which
costs the taxpayers $8.8 billion--that is big--reportedly has
been used for all sorts of inappropriate things, including the
purchase of liquor for officers.
So I would like to know how you are planning to reform the
COPS program to make sure that the American people are getting
their money's worth and to stop the COPS office from making
highly misleading public relations statements concerning the
results of the COPS program.
Mr. Marcus. Mr. Chairman, I read the Wall Street Journal
article that appeared this week, and the COPS office is hard at
work preparing a response to that article. The COPS program, I
think, is an example of a very large and important Federal
program of providing assistance to State and local law
enforcement agencies to hire police officers and to purchase
computers and other equipment and to hire civilians that will
free up police officers to be deployed on the street.
The purpose of the COPS program is a very important purpose
that I think has widespread bipartisan support, and that is to
get more cops on the street and to improve community policing
throughout our Nation. As with any large Government grant
program, there may be occasional situations--and there are
thousands and thousands of COPS grants out there--where there
have been problems with those grants.
The particular situations described in the Journal article
are isolated situations which the COPS program has dealt with.
The Inspector General did an audit of the COPS program last
year shortly after I came to the Department. The COPS office
has cooperated with the Inspector General in making the changes
that the Inspector General recommended in resolving the audit
issues, and we are convinced that the COPS program is well on
the road to resolving the issues raised by the Inspector
General report.
You referred to the COPS count issue and let me just say a
word about that. I think we have been very careful in the
statements we have made about the COPS program. It takes some
time once a grant is made, particularly with the technology
grants, to do the redeployment, to do the training and get the
cops out on the street, to hire the cops to get them out on the
street.
We have been very careful to say that we have met our goal
of funding through grants the hiring or redeployment of more
than 100,000 police officers. As the Journal article indicated,
we have got about half those officers already hired and out on
the street, another 13,000 or so redeployed as a result of
technology grants, and the other grants will result in cops in
the pipeline getting out on the street over the next couple of
years.
But we are committed to running that program in an
efficient way, consistent with standards of integrity. And I
have a lot of confidence in Tom Frasier, who came to the
Department last fall from a career as police commissioner in
Baltimore and previously as a police officer in California. He
is working very hard with a good staff to make sure that
program is run well.
Senator Sessions. In terms of money, it is the biggest part
of your portfolio, isn't it?
Mr. Marcus. It is a big part, yes.
Senator Sessions. Will you commit to us that you will
examine the Inspector General's report, which I saw last year
and reviewed, and it was pretty scathing on some of the
activities, actually, your own Department of Justice Inspector
General. I believe it needs some attention. I don't think it is
something that you can coast on now.
Will you give this program attention to make sure that
statements coming out saying what it has accomplished are
accurate, and that some of the abuses, some of which are done
by local police, not the Department of Justice, but you have
the responsibility of some oversight on the money you send
out--will you make a commitment that you would work to improve
that program?
Mr. Marcus. I agree with you, Senator, and I will make that
commitment. We have made a lot of progress, but it needs and
will receive my continued attention.
Senator Sessions. I am also concerned about the
politicization of the Department and the perception that it has
brought the tobacco suit for political reasons. I am concerned
that if this is true, no industry would be immune from efforts
by the Federal Government to use litigation as a tool to
regulate unpopular industries. This would bypass Congress'
constitutional role to set health policy through the
legislative process.
I believe that the Federal tobacco suit may be the start of
a pernicious trend to sue entire industries, which was never
done until very recently in our legal system, in order to
coerce settlements or enforce judgments that, infact, regulate
entire sectors of our economy.
I was also troubled by the lawsuit against the gun
manufacturers. I felt that was particularly extreme, although I
will note--I see you are smiling, but I will note the
Department of Justice did not file that suit. It was done by
Housing and Urban Development, I believe, and I thought it was
a stretch. Since normally litigation is commenced within the
Department, it was not approved within the Department.
But with regard to this tobacco issue, would you share your
comments about that?
Mr. Marcus. Yes, Mr. Chairman. I appreciate your concerns
about lawsuits of this nature.
Senator Sessions. Excuse me.
Mr. Marcus. Good morning, Mr. Chairman.
Senator Sessions. We are delighted to have our Chair.
The Chairman. Please go ahead.
Mr. Marcus. Senator Sessions, I appreciate your concern
with lawsuits of this nature, and I want to assure you, when I
came to the Justice Department a little over a year ago,
consideration of a possible lawsuit against the cigarette
companies was already well underway. And I observed and
participated in that process from April of 1999 until September
when the lawsuit was filed, and I can assure you that the
filing of that lawsuit, the decision to file that lawsuit was a
careful decision that was undertaken on the merits by the
Justice Department, and that we are confident that there are
unique factors about the history of the tobacco industry and
the cigarette companies that justify this kind of lawsuit.
The test, of course, will be in the Federal courthouse.
Indeed, next week the motions to dismiss that were filed by the
cigarette companies will be argued before the Federal district
court here in Washington. And we are confident that we have a
sound lawsuit, but the courts will tell us.
Senator Sessions. Well, I would just note I think in some
of these new forms of litigation, we are at the margin that
implicates separation of powers issues. Even if we don't like
what they are doing, even if what they are doing is wrong,
normally an individual has to file a suit. When the Government
steps in and the Attorneys General of the States hire lawyers
to represent them at huge fees and those kinds of things, we
begin to have a blurring.
You and I have talked about this. I respect your legal
analysis of these issues, and I just want you to know that I am
concerned about it. I think we may have some disagreement on
the issue, but I respect your judgment.
Mr. Marcus. Thank you, Senator.
Senator Sessions. Thank you.
The Chairman. Senator Schumer has some questions.
questioning by senator schumer
Senator Schumer. Thank you, Mr. Chairman, and I thank you
for holding this hearing. I want to thank Mr. Marcus for the
service that he has already given. He is obviously a well-
qualified candidate for Associate Attorney General.
I would like to speak to you on an issue that you probably
knew you were not going to get away without my asking questions
about this, but it is something I am extremely concerned about
and now getting very frustrated with the Justice Department,
and particularly your department, and that is the Justice
Department's lack of action with respect to innocent private
land owners in the Oneida land claims suit of New York. I have
been asking that these land owners be removed from suit for
more than a year.
You oversee this case and we have talked about it several
times. I must admit I still don't feel I have a satisfactory
answer to why DOJ cannot proceed in this case without involving
innocent land owners, not only in the right of ejectment, but
in allowing them to be in harm's way in any way at all.
Can you tell me what is happening? Can you tell me why
there has been such delay and when I am going to get an answer
from Justice not only about ejectment, but about all financial
claims that might be held against land owners?
Mr. Marcus. Yes, Senator Schumer, and I think you are going
to get an answer very soon. We have been involved in a process
which has stretched out longer than we had hoped of trying very
hard to get this case settled. As you know, Judge McKearn, I
guess it was over a year ago, appointed a distinguished
mediator to try to settle this case, and our motion with
respect to coming into the case and adding the State and the
land owners as defendants has never been acted on. It has been
held in abeyance pending the settlement negotiations.
We have been very reluctant to give up on the settlement
negotiations because from time to time--and I can't discuss
them in detail--we have been close to a settlement, we had
hoped. We have worked very hard with the State, with the
counties, and with the Oneidas to try to settle this case.
We recently asked the judge for another week because
efforts are still continuing. Absent another extension, we will
be filing our report with the judge next week on the status of
the settlement negotiations, and we are continuing to explore
ways in which we can give additional assurances to the land
owners. The land owners, as you observe, are----
Senator Schumer. Can I interrupt? What assurances have you
given? You said additional.
Mr. Marcus. Well, we have given----
Senator Schumer. I see the Justice Department filingthe
suit. It was done before I took office. The Justice Department was
siding with the Oneida Nation, was agreeing that land owners might have
to be ejected, was agreeing that land owners who have held the property
for--families often for generations, should be held in harm's way for
something that happened in 1790.
I was utterly amazed that the Justice Department and the
Federal Government would not simply try to settle, but would
basically hold the land owners as hostage, as pawns, to try and
get the State to settle. I admit there are legitimate claims
between the State and the Indian tribes, although those come
from 1790. There was a Supreme Court case in 1985, but there
was no mandate whatsoever that the land owners be put in the
middle of this.
And now we are in the anomalous position where the Oneidas,
the actual plaintiffs, are asking for less than the Justice
Department, because they have already publicly stated that as
long as the suit is allowed to continue, they will remove the
land owners from harm's way. They are admitting they made a
mistake. Do you think the Justice Department made such a
mistake?
I know there is a settlement going on; we all know that. I
would like to know how one can defend putting a right of
ejectment in the suit, how one can defend that the Federal
Government, in the personage of the Justice Department, should
take the side completely of one side in this case, and most
importantly when are we going to see the Justice Department
remove the land owners from harm's way, something we have all
been waiting for and hasn't happened. You and I have talked for
three, four months. We talked, I think, two, three weeks ago
and I was supposed to get an answer within three days.
Mr. Marcus. Senator, the Justice Department came into this
case before I was at the Justice Department because of its
statutory obligation to look out for the interests of Indian
tribes such as the Oneidas. But the Department of Justice's
sharing of interest with the Oneida tribes is with respect to
the State's responsibility here. We think the State of New York
is the party that should be paying damages to the Oneida
Indians.
The Federal Government, incidentally, in the settlement
negotiations has offered to make a Federal contribution, as
well, even though there is no Federal responsibility here, we
believe, in an effort to try to settle the case.
Senator Schumer. But I am not arguing that part of the
case.
Mr. Marcus. I understand.
Senator Schumer. I am arguing that the land owners are put
in the middle.
Mr. Marcus. I understand that.
Senator Schumer. Property values have declined. People are
afraid to sell their land, people are afraid to buy land, for
something that these people are as innocent as you or me of, an
action in 1790.
Mr. Marcus. We have tried to give assurance to the land
owners that we are seeking relief against the State, not the
land owners. One of our problems, as you know, is that the
position that the State has been taking formally in the case is
one that suggests that the State is not liable and that the
land owners implicitly may be liable. That is not our position.
Since the time I have been at the Justice Department, we
have consistently assured the land owners that we are not
seeking ejectment and we are glad to----
Senator Schumer. Although your court papers have said it.
Mr. Marcus. The court papers----
Senator Schumer. You tell them we are really not doing
this, but the court papers say we are seeking ejectment. They
haven't been changed yet, as I understand it, in the Oneida
case.
Mr. Marcus. I can assure you, Senator, that we----
Senator Schumer. But am I right that at this moment the
court papers filed have not been amended and they hold a right
of ejectment?
Mr. Marcus. That is correct, but we have not only stated
publicly, we have told the court that we are not seeking
ejectment, and the amended complaint that will be filed will
certainly not seek ejectment.
Senator Schumer. Will the amended complaint remove the land
owners from harm's way in any way?
Mr. Marcus. I am very hopeful that we are right now
considering actively several alternatives for giving additional
assurances to the land owners and removing them from harm's
way, and I hope to have a definitive answer for you as soon as
we reach a decision on that, which hopefully will be in the
next few days.
Senator Schumer. OK, although I have heard that for three
months.
Mr. Marcus. I understand.
Senator Schumer. Do you set this policy or do you have to
get approval from someone above you?
Mr. Marcus. I supervise the Environment and Natural
Resources Division. This is an issue we work out with our
client, the Department of the Interior.
Senator Schumer. Has Interior stood in the way of removing
the land owners?
Mr. Marcus. We are in the middle of discussions with them,
Senator. No, they have not stood in the way.
Senator Schumer. OK.
Mr. Marcus. We are working together with them to consider
alternatives for providing additional assurances to the land
owners.
Senator Schumer. You know, you could have said to me a year
ago, don't push me on this because we are trying to negotiate,
but I have lost patience, basically. Would you be willing to
say that it is your personal view that the Justice Department
should remove the land owners from this suit and out of harm's
way as long as the suit between the Indian tribes and the
State, which is the gravamen of the complaint here, is not
jeopardized?
Is it your personal opinion--I am not asking Justice
Department policy--that you should at least go as far as the
Oneidas have gone in backing off what I consider a real
travesty in how the Federal Government has behaved?
Mr. Marcus. I think I can say it is my personal opinion and
it is the opinion of the Department of Justice. We are going to
make clear to the court that we are not seeking any relief
against the land owners.
Senator Schumer. You are going to make that clear in your
legal papers or just in--I forget the term, having been out of
law school for a long time and never practiced, but dicta? Is
this going to be part of the papers or is this going to be
whatever verbiage is between you?
I mean, what has happened in the past is we go to the land
owners, sir, and we say, well, the Justice Department really
isn't serious about removing the land owners or holding them
out of harm's way. And they come back to us and say, really?
Here are the legal papers they filed.
You are a good lawyer, you are an excellent lawyer. If you
were advising your client, would you advise them to rely on the
verbiage between the judge and the lawyer or on what the court
papers say?
Mr. Marcus. Senator, we will be filing papers with the
court very shortly that will make our position clear. I hope
that position will be satisfactory, will provide sufficient
assurance for the land owners and for you.
Senator Schumer. Well, I would simply urge you to
reevaluate the position of Justice and make it crystal clear
that you are not coming in de novo. You are not coming in with
clean hands, not you, Mr. Marcus, but the Justice Department.
And I would advise you to make it one hundred percent clear in
the papers and everywhere else that the land owners are no
longer in harm's way.
Here is what you have in the last year, Justice Department.
You have not accomplished a settlement. You have created far
greater tensions between the Indian tribes and the land owners
because you have pitted one against the other, when originally
that wasn't the case. And you have hurt two counties that are
in pretty bad shape to begin with. So I would hope that you
learn the error of your ways.
By the way, this is not personal to you. I think you are a
fine man. You know, you are serving your country well and you
are the kind of person who should be in Government. And I don't
know what forces there are surrounding you, but the frustration
level not only that I have, but that Congressman Boehlert has,
that all of the Federal representatives of this area, Democrat,
Republican, liberal, conservative, have with how the Justice
Department has acted is at the boiling point. And I would urge
you to try and get that policy changed as quickly as possible.
I want to say to your family--I imagine those are your
children there--he is a good man and I have nothing against
him. You should be proud of him. I just think he is
representing a wrong policy, very wrong, in one specific
instance.
Mr. Marcus. Is now the time, Senator, to tell you I was
born in Brooklyn? [Laughter.]
Senator Schumer. Well, you can tell me that when you file
your papers.
Thank you. Thank you, Mr. Chairman. I am sorry for that
diversion, but this is extremely important to me and to many of
the citizens of my State.
The Chairman. That is fine, Senator Schumer.
Mr. Marcus, welcome.
Mr. Marcus. Thank you, Mr. Chairman.
QUESTIONING BY SENATOR HATCH
The Chairman. I am sorry I couldn't be here from the
beginning.
I have worked for many years to protect the religious
freedoms of all Americans. I believe that such freedoms are
among the very most fundamental and important rights protected
by the Constitution. The Clinton administration supported the
Religious Freedom Restoration Act, which passed a few years ago
but was partially struck down by the Supreme Court. I am now
working on the Religious Liberty Protection Act.
Will you make a commitment not only to support such
legislation, but also to work with me to pass this legislation
this year?
Mr. Marcus. Senator Hatch, I know our folks are actively
taking a look at draft language on a new religious liberty
protection act. We are very anxious to work with you and with
other Senators and Congressmen on this issue. The President has
a commitment here, and we look forward to--I think the idea of
now trying more focused, specific legislation in an effort to
adjust to the Supreme Court's decision in City of Boerne makes
a lot of sense.
The Chairman. Well, it is very important to me. Ibelieve we
should do that. One of the triumphs we had was passing the Religious
Freedom Restoration Act. I was down there with the President when he
signed it into law, and I was really shocked at the Supreme Court
coming out and voiding it partially.
Now, the Judiciary Committee, along with other
congressional committees, have experienced a great deal of
frustration in conducting oversight of the Justice Department.
Requests for documents and other information are generally met
with conciliatory statements and indications of cooperation,
but actually getting documents from the Justice Department has
been like pulling teeth.
The Department has stonewalled us, citing Department
policy, deliberative process, sensitive matters,
classification, all the while denying the Congress and the
American people from looking at the materials that we think we
are entitled to. They have been denying us the necessary
information to evaluate the performance of the Justice
Department.
Despite the overwhelming support in the case law upholding
Congress' authority to get information related to its oversight
function, including information relevant to internal
deliberations by prosecutors and open investigations, the
Justice Department has refused to produce materials simply
because of departmental policy.
For example, the Department of Justice has refused to
produce certain materials related to the Loral Hughes matter
solely on the basis that it would go against Department policy
with regard to open cases. Now, this is despite the fact that
the courts, from investigations since Teapot Dome to Iran-
contra, have ruled that Congress is entitled to information in
open cases.
When a subpoena is issued to the Justice Department, do you
believe that it is proper to refuse to produce documents on the
basis of anything other than a recognized legal privilege, such
as executive privilege or attorney-client privilege?
And let me just ask an additional question on top of that
one. What will you do to ensure that the Department fully
complies with congressional subpoenas?
Mr. Marcus. Mr. Chairman, I think that, of course, we don't
assert the right to refuse to respond to subpoenas other than
on the basis of clearly established privileges. But we do make
an effort, where we have concerns under deliberative privilege,
under the open case policy, to see if we can reach some
accommodation with the committee that provides you with the
information you need in a way that enables us to protect what
we think are important policies that are longstanding policies
of the Justice Department in Republican as well as Democratic
administrations.
We are not always successful in that effort, and I realize
that there have been disagreements in this necessary process of
trying to accommodate between the Department's needs and the
committee's very important needs. I can commit to you that--and
most of the controversies that you have referred to are ones
that don't fall within my bailiwick on the civil side of the
Department.
But I know that the Attorney General and the Deputy
Attorney General are committed to working with you and your
committees on these matters, despite past disagreements. And I
share that commitment and give you my personal commitment to
try to work those matters out in an effective way so that you
get what you need.
The Chairman. Well, thank you because I think we have had
far too many difficulties getting subpoenaed documents, and
frankly it just isn't right. So I would appreciate any help you
can give there.
Well, I want to thank you for being here today. I am easy
compared to these other guys. [Laughter.]
Mr. Marcus. Thank you very much, Mr. Chairman.
The Chairman. Nice to have you with us.
[The questionnaire of Mr. Marcus, with attachments,
follow:]
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The Chairman. If we can have Ms. Campbell, Mr. Garcia-
Gregory, Ms. Martin, and Judge Swain come to the witness table,
I will be glad to swear you all in.
If you would raise your right hands, do you solemnly swear
to tell the truth, the whole truth, and nothing but the truth,
so help you God?
Ms. Campbell. I do.
Mr. Garcia-Gregory. I do.
Ms. Martin. I do.
Judge Swain. I do.
The Chairman. Thank you.
Do any of you have any statements you would care to make?
We will start with you, Ms. Campbell, then Mr. Garcia-Gregory,
then Ms. Martin, and then Ms. Swain, and please introduce your
family members or any guests or friends that you have with you.
TESTIMONY OF BONNIE J. CAMPBELL, OF IOWA, TO BE U.S. CIRCUIT
JUDGE FOR THE EIGHTH CIRCUIT
Ms. Campbell. Thank you, Mr. Chairman. I don't have a
statement, except to thank you for the opportunity to be here.
I would like to introduce my husband, Ed Campbell, sitting
right there.
The Chairman. Ed, we are glad to have you with us.
Ms. Campbell. And I have many friends and colleagues from
the Violence Against Women Office and others with whom I work
who are here, and I thank them, but I certainly won't introduce
all of them.
The Chairman. Well, we are thankful to have all of you
here. As one of the coauthors of the Violence Against Women
Act, we are happy with the work that you are doing, and we are
going to try and get it right this time, although I felt the
Supreme Court should have gotten it right itself, but you never
know.
Ms. Campbell. I appreciate your support always.
The Chairman. Thank you, Ms. Campbell.
Mr. Garcia-Gregory.
TESTIMONY OF JAY A. GARCIA-GREGORY, OF PUERTO RICO, TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO
Mr. Garcia-Gregory. I take this opportunity to thank you,
Mr. Chairman, for the opportunity to be here at this hearing.
And I would like to introduce my wife of 30 years, Myrella.
The Chairman. So happy to have you here.
Mr. Garcia-Gregory. And my daughter, Myrella Garcia, 27
years old.
The Chairman. Very happy to have you.
Mr. Garcia-Gregory. My other daughter could not be here.
She took a vacation after finishing her second year of law
school at Suffolk, and she is right now in Malaysia. But I wish
to publicly thank my wife, Myrella. If it had not been for her
support, I probably would not be here today. She was
instrumental in my actually going through my career as a
lawyer, as a law student and a lawyer, and she has been very
supportive. And if I had to marry again, I would marry her all
over again, as well as I would study law, which I love, I
really love.
The Chairman. We are always happy to hear that. [Laughter.]
Mr. Garcia-Gregory. It has been 30 years of bliss and I
hope it goes on.
The Chairman. Thank you so much.
Ms. Martin.
TESTIMONY OF BEVERLY B. MARTIN, OF GEORGIA, TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA
Ms. Martin. Thank you, Mr. Chairman. I wanted to thank you
for having this hearing today, and particularly for letting me
participate in it.
My father is here with me today, Baldwin Martin. He is here
from Macon, GA. My cousin, Kelli Wynn, is----
The Chairman. Let's have your father stand up. I think I
saw him.
[Mr. Martin stood.]
The Chairman. Very happy to welcome you here.
Ms. Martin. My cousin, Kelli Wynn, is a student at
Georgetown, so she was able to come across town and be with us
today. She told me she made dean's list, so I think she is
really here to check my answers.
The Chairman. That is good.
Ms. Martin. Also, a childhood friend from Sunday school and
church lives here in Washington and she is here as well,
Kathleen Burger. She is here with her husband, Glen Gerada.
The Chairman. Kathleen, happy to have you here, and your
husband as well.
Well, thank you.
Ms. Martin. Thank you for having me.
The Chairman. By the way, Paul Warner speaks very highly of
you.
Ms. Martin. I think very well of him, Mr. Chairman.
The Chairman. He is a good man.
Ms. Swain.
TESTIMONY OF LAURA TAYLOR SWAIN, OF NEW YORK, TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK
Judge Swain. Thank you, Mr. Chairman. It is an honor to be
here, and I am grateful for the consideration of the nomination
and for the opportunity to introduce my family members who are
here today--my husband, Andrew Swain, and my daughter,
Annabelle Swain.
The Chairman. Annabelle. She looks like she is pretty
relaxed there.
Judge Swain. It varies.
My mother, Madeline Taylor.
The Chairman. We are happy to have you with us.
Judge Swain. And my brother, Gordon Taylor.
The Chairman. Gordon, happy to have you here.
Judge Swain. And for myself and my family members who could
not be here today, including Andy's family in England and for
the bankruptcy court on which I sit, I thank you for this
opportunity and for the consideration.
The Chairman. Well, thank you so much. We are proud of you
and proud to have all of you here, and we look forward to
questioning you and asking some questions to you that I think
need to be asked.
I will just ask across the board here, in general, Supreme
Court precedents are binding on all lower courts, and circuit
precedents are binding on the district courts within any
particular circuit. Are you committed to following the
precedents of the higher courts faithfully and giving them full
force and effect even if you personally disagree with such
precedents?
Ms. Campbell, you are up for the eighth circuit, and the
rest of you are up for district court judgeships.
Ms. Campbell. Well, the answer is short. Absolutely.
The Chairman. OK.
Mr. Garcia-Gregory. Definitely, yes.
Ms. Martin. Yes, Mr. Chairman.
Judge Swain. Yes, Mr. Chairman.
The Chairman. What would you do if you believed the Supreme
Court or the court of appeals had seriously erred in rendering
a decision? Would you nevertheless apply the decision or would
you apply your own best judgment on the merits?
We will start with you, Judge Swain.
Judge Swain. I would follow the applicable precedent,
absolutely.
Ms. Martin. The role of the district court is very limited
and you would be bound by the precedent from the circuit court
or the Supreme Court, Mr. Chairman.
Mr. Garcia-Gregory. I would be duty-bound by the Supreme
Court, as well as the circuit.
Ms. Campbell. I would follow the precedent, as well.
The Chairman. That is good. Take, for example, the Supreme
Court's decision on Monday in United States v. Playboy
Entertainment Group, Inc., where the Court struck down a
provision of the 1996 Telecommunications Act that was designed
to protect children from exposure to sexually explicit adult
programming on television. That was a 5-4 decision.
The bill required cable operators who offer sexually
explicit material to fully scramble their signals or show such
programming only between 10 p.m. and 6 a.m. The Court said that
violated the first amendment's free speech guarantees. The
Court held that another section of the same law requiring cable
operators to inform subscribers that they will completely block
objectionable if asked to do offered an equally effective and
less restrictive means to achieve the same goal.
I presume you will follow the precedent, even though you
may or may not agree with it. Anybody who won't?
[No response.]
The Chairman. You have stated that you would be bound by
Supreme Court precedent and, where applicable, the rulings of
the Federal circuit court of appeals for your district. There
may be times, however, when you are faced with cases of first
impression. What principles will guide you or what methods will
you employ in deciding cases of first impression?
Shall we start with you, Ms. Martin?
Ms. Martin. Thank you, Mr. Chairman. Of course, in my 20
years of practicing law, I have rarely been faced with an issue
that hadn't been decided before because there is such an
enormous body of law from the various courts who are ruling
over district courts.
But there is a procedure to follow. You look first to the
plain language of the statute in interpreting it, look to any
other analogous analyses that have been made by the circuit
courts and the Supreme Court and apply those.
The Chairman. All right.
Mr. Garcia-Gregory.
Mr. Garcia-Gregory. I would agree with my colleague on the
left. You know, those are the available sources to be used. If
there is any ambiguity in the statute, it is not a plain-
language matter, I would go to the legislative history. But I
would certainly use the traditional tools of analogy and
distinction, but always being guided by either precedent or the
applicable laws.
The Chairman. Thank you.
Judge Swain.
Judge Swain. In those rare cases, and they are indeed rare
in my experience as well, I would look to theapplicable
constitutional or statutory language as a starting point, to
precedents, to analogous cases, perhaps analogous statutes, and I would
do my best to make a decision that is consistent with precedent, with
applicable law, and to explain well the basis of my decision.
The Chairman. Thank you.
Ms. Campbell.
Ms. Campbell. It is difficult to improve upon what has
already been said because I agree with it. I would look to the
Constitution, the statute, the plain meaning of the statute,
any Supreme Court or circuit court precedents, and apply the
law as well as I can.
The Chairman. Thank you. Now, please state in detail your
best independent legal judgment on the lawfulness under the
Equal Protection Clause of the 14th amendment in Federal civil
rights laws of the use of race, gender, or national origin-
based preferences in such areas as employment decisions--that
would be hiring, promotion, or layoffs--college admissions and
scholarship awards, and the awarding of government contracts.
Now, I think I should note that the Supreme Court has held
that any race-based classifications at either the Federal or
State level are to be examined under the strict scrutiny
standard. Under this standard, the classification must be
justified by a compelling government interest. The Court has
mentioned that providing remedies to those who have directly
suffered discrimination meets this test, but that an interest
in curing widespread societal pressures or achieving diversity
does not.
Shall we start with you, Ms. Campbell?
Ms. Campbell. The Adarand case, as you described it, is
clearly controlling law. Any remedial statute would have to be
very narrowly tailored to promote a compelling state interest,
and any review of that by a court would apply a strict scrutiny
test. I think that is a very, very tough standard.
The Chairman. Mr. Garcia-Gregory.
Mr. Garcia-Gregory. I agree with my colleague on the right.
It would be a strict scrutiny standard and I would abide by the
Adarand decision.
The Chairman. OK.
Ms. Martin. Mr. Chairman, the Supreme Court was very clear
in the Adarand case that any race-based classifications should
be subject to very strict scrutiny, and I would be bound by
that and I would follow that.
The Chairman. Ms. Swain.
Judge Swain. I agree with my colleagues. The Supreme Court
has spoken very directly to the standard for evaluating any
race-based classification, and I would follow precedent in any
decision that I would make.
The Chairman. All right. Now, do any of you have any legal
or moral beliefs which would inhibit or prevent you from
imposing or upholding a death sentence in any criminal case
that might come before you as a Federal judge? Do any of you
have any----
Ms. Campbell. No.
Judge Swain. I don't, Mr. Chairman.
Mr. Garcia-Gregory. No.
Ms. Martin. No.
The Chairman. All right. That is a tough one because we all
have differing views on these types of things, but we have to
apply the law.
Do you believe that 10-, 15-, or even 20-year delays
between conviction of a capital offender and execution is too
long? What do you think?
We will start with you, Mr. Garcia-Gregory.
Mr. Garcia-Gregory. I would say yes, I think it is a little
long. It is a long time, but in any event, you know, it is a
matter for either Congress to remedy or the courts to act more
swiftly on the petitions that are made.
The Chairman. OK; Ms. Martin.
Ms. Martin. Well, I know that Congress has taken steps to
expedite those types of things so that they won't take 10 to 15
years. And, of course, you are the policymaking body and every
statute that you pass is presumed constitutional, and that
would be the policy that would be enforced by the courts.
The Chairman. Ms. Swain.
Judge Swain. I believe that the courts should be as
efficient as possible in considering death penalty appeals, as
in all matters. And to the extent there are available avenues
of appeal or administrative or statutory mechanisms that are
within the purview of the legislative branches or the executive
branches of Government, as a judge I would work within the law
as established by the policymaking branches of Government.
The Chairman. Ms. Campbell.
Ms. Campbell. I am beginning to feel like I am a copy-cat
here. I think it was the goal of Congress with the habeas
corpus reform to speed up this process.
The Chairman. Well, it was a Hatch-Dole bill, the
Antiterrorism and Effective Death Penalty Act, that basically
said we are tired of these long delays. And we want to treat
people fairly, but there should not be frivolous appeals. We
gave them basically one trip up through the State courts and
one trip up through the Federal courts, and unless there is an
absolute proof of innocence, the sentence has to be carried
out.
It takes about 3 or 4 years to go through that process, but
we have been talking about 10-, 15-, 20-, 25-yeardelays, with
frivolous appeal after frivolous appeal, and some of the lower court
judges have made mockery out of the system.
Now, let me ask this question. We will start with you, Ms.
Campbell. The Supreme Court, through a process of so-called
selective incorporation, has applied most, if not all, of the
provisions of the Bill of Rights against the States. Thus, for
instance, the First Amendment, which originally was intended to
apply only to the Federal Government, has been applied to the
States. The Second Amendment, however, which protects the
rights of law-abiding citizens to own firearms in this country
has not.
Do you believe the Second Amendment ought to be applied to
the States?
Ms. Campbell. I don't have a vast knowledge of Second
Amendment law, but I can assure you that if that question came
to me in a case or a controversy, I would look to the Supreme
Court for guidance.
The Chairman. All right.
Mr. Garcia-Gregory.
Mr. Garcia-Gregory. I don't think I could improve on the
answer that was given here by my colleague. I would certainly
look--and I would go also into any constitutional sources of--
sources that could help, you know, in deciding the issue. But
certainly I have to go into Supreme Court precedents, if there
are any.
The Chairman. All right.
Ms. Martin.
Ms. Martin. Again, Mr. Chairman, the role of a district
court judge is limited to following the precedent established
by the United States Supreme Court, and in my case the Eleventh
Circuit of Appeals. As a Federal district judge, I would do so.
The Chairman. OK.
Ms. Swain.
Judge Swain. I join my colleagues. If such an issue were
presented to me as a district court judge, I would decide it
within the bounds and the precedents set by applicable law in
the courts above me.
The Chairman. OK; let me go to you, Ms. Campbell, and just
ask you a couple of questions. Under what circumstances do you
believe it appropriate for a Federal court to declare a statute
or an act enacted by Congress unconstitutional?
Ms. Campbell. Well, one would hope that would be very rare
and only if there were Supreme Court precedent which one would
be required to follow.
The Chairman. Are you aware of the Supreme Court's recent
decision in United States v. Morrison and its 1995 decision
United States v. Lopez? And if you are, please explain to the
committee your understanding of these decisions and their
holdings regarding congressional power.
Some commentators have accused the Supreme Court of
judicial activism because of their decisions in these cases. Do
you agree or disagree?
Ms. Campbell. I don't think I would fool you at all, Mr.
Chairman, if I told you that I wasn't familiar with those
cases. Of course, I am. It is my understanding in both Lopez
and U.S. v. Morrison that the Supreme Court requires a truly
economic activity before Congress can rely upon the Interstate
Commerce Clause to pass a law in an area, if I haven't too
grossly oversimplified which was what I thought a very lengthy
decision by the Court, especially in Morrison. As a circuit
court judge, I know you understand, if I am fortunate enough to
be there, that I would have to follow the law handed down in
those cases.
The Chairman. There have been nine major cases now on
federalism and those two are two very interesting cases on
federalism that have been highly criticized by some. Every one
of them has been a 5-4 decision, as you know. It will be
interesting to see how that finally sifts out.
Mr. Garcia-Gregory, let me ask you this question. The
making of law is a very serious matter. To enact a statute or
to amend the Constitution is very serious, or the text of a
proposed statute or an amendment. They must receive a set
number of formal approvals by the elected representatives of
the people either in Congress or in the State legislatures.
This formal approval process embodies the express will of the
people through their elected representatives, and this elevates
the particular words of the statute or constitutional provision
to binding law.
Now, do you agree that the further a judicial opinion
varies from the text and the original intent of a statute or
constitutional provision, the less legal legitimacy it has?
Mr. Garcia-Gregory. If I have understood the question
correctly, I would--you know, as a U.S. district court judge, I
would be bound to give all presumptions to a congressional
enactment as far as constitutionality is concerned, and to
respect, you know, the plain language of the statute. If there
is any ambiguity, you know, I would have to go into the
legislative history. But there certainly is a presumption of
constitutionality, you know, through the congressional process,
and it would be my duty to try to save the statute through any
narrow construction that could be feasible in order to avoid
having to decide an unnecessary constitutional question.
The Chairman. Ms. Martin, the Founding Fathers believed
that the separation of powers in a government was critical to
the protection of the liberty of the people. Thus, they
separated the legislative, executive, andjudicial powers into
three different branches of government, the legislative power being the
power to balance moral, economic and political considerations, and to
make law, and the judicial power being the power only to interpret the
laws made by Congress and by the people.
Now, in your view, is it the proper role of a Federal judge
when interpreting a statute or the Constitution to accept the
balance struck by the Congress or to rebalance the competing
moral, economic, and political considerations?
Ms. Martin. No. It is the role of the court to accept the
balance established by Congress, and any statute that is
considered by a court should be presumed constitutional.
The Chairman. Are you aware of the case recently argued
before the Supreme Court entitled Dickerson v. United States?
Ms. Martin. I am, Mr. Chairman.
The Chairman. You are aware of Section 3501, 18 U.S.C.
Section 3501. That case asked whether a defendant's voluntary
confession could be admitted into evidence in the Government's
case-in-chief under 18 U.S.C. Section 3501 even if the
confession was not preceded by the warnings required by the
Miranda v. Arizona decision.
Now, please explain to the committee your understanding of
Miranda, Section 3501, and the proper role of the Congress and
the courts in establishing rules of evidence and procedure for
the Federal courts.
Ms. Martin. Well, it is the role of Congress to establish
the rules of evidence and the rules of law that are supposed to
be interpreted by the courts. The issue in Dickerson related to
the formality of the Miranda warnings. I think 3501 looked more
to the voluntariness of the statement and, of course, that is
an issue that is involved in evidentiary hearings in courts all
over this country everyday. But whatever the ruling of the
United States Supreme Court, of course, if I were to be
confirmed as a United States district court judge, it would be
my job to follow that ruling.
The Chairman. Thank you very much.
Now, Judge Swain, let me ask you this question. In a speech
you gave at the U.S. Attorney's Office, you stated that the
``Supreme Court's recent States' rights decisions,
particularly in the sovereign immunity area, change radically
settled assumptions regarding private civil litigation as a
means of enforcing federally-recognized rights, including in
the discrimination area.''
Now, please explain to the committee your understanding of
the Court's recent sovereign immunity decisions and whether you
view them as a positive development for our legal system.
Judge Swain. As you noted, Mr. Chairman, that remark was in
the context of the recent line of States' rights and sovereign
immunity cases that began with the seminal Tribe case and have
continued through and including the case whose title escapes me
at the moment dealing with the enforcement of the Age
Discrimination in Employment Act by private individuals as
against the States.
I understand and I accept as binding precedent and the law
the Court's construction of the powers of Congress with respect
to the waiver of sovereign immunity of the States and with
respect to, in particular, in the context of private civil
litigation.
The ADEA, as well as other statutes dealing with civil
rights, include private civil action provisions, and under the
ADEA decision of the Supreme Court, it is clear that the
current Court and the current law in the United States is such
that private actions may not be brought under certain
circumstances in which they had been authorized by statute.
The Chairman. Well, I think we have asked enough questions
here. There are a lot of other questions, naturally, we could
ask, but I am very proud of all four of you having this
opportunity to be nominated for these very important positions.
They are lifetime positions and they are among the most
important positions in the world.
At least from my standpoint, the Federal judiciary is the
one branch of Government we have counted on to save the
Constitution through all these years, and we are going to
continue to count on you folks as you serve on your respective
benches to do the very best you can to keep our country free
and to abide by the rule of law, which is very poorly
understood by many other nations, but is very well understood
here. You have all given excellent answers to these questions.
Let me just say this, that Senators Leahy and Moynihan have
statements for the record. Senator Moynihan's statement is in
support of you, Judge Swain.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Senator Patrick Leahy, a U.S. Senator From the
State of Vermont
I am glad to see the Committee holding a hearing for judicial
nominees today. The Committee has been woefully slow in acting on
nominees to federal courts across the country and, in particular, on
nominees to the Courts of Appeals. The Committee has reported only 16
nominees all year and held what amounts to three previous hearings all
year on judicial nominations. There is growing frustration around the
country with this partisan stall.
I am very glad to see that Bonnie Campbell, nominated by the
President to a vacancy on the Eighth Circuit Court of Appeals, is
included in today's hearing. She currently serves as the distinguished
head of the Department of Justice's Violence Against Women Office and
has previously served as the Attorney General for the State of Iowa.
Ms. Campbell enjoys the support of both of her home state Senators. I
have known and worked with Bonnie for a number of years and believe
that she will bring an important perspective to the federal bench. She
has worked on victims issues and domestic violence issues for many
years. She has a distinguished background in public service and law
enforcement at the state and federal levels.
The Committee is also proceeding on three District Court nominees:
Jay Garcia-Gregory, nominated to the District Court of Puerto Rico;
Beverly Martin, nominated to the District Court in the Northern
District of Georgia; and Judge Laura Taylor Swain, nominated to the
District Court of the Southern District of New York. I am sorry more
nominees were not included today. This is another abbreviated list of
nominees and not the full complement of five to seven judicial nominees
that we normally consider. In light of the vacancies that are being
perpetuated and the number of highly qualified nominees pending before
this Committee, that is most regrettable.
I have spoken over the last several years on the need to move
forward on the nomination to the District Court in Puerto Rico. Over
the last several weeks I have made the point that crime and drug
trafficking are serious problems in the Carribean and that we should be
making sure that the federal court in Puerto Rico has all the resources
it needs to do its job.
Also included at today's hearing is Daniel Marcus, who has been
nominated by the President to be the Associate Attorney General. I am
glad to see the Committee moving forward on the nomination of this fine
man to the third highest position at the Department of Justice. Mr.
Marcus is a dedicated public servant who is well known to many of us. I
hope that his presence here today signals that the majority will now
proceed without further delay to confirm him to this important
position.
Unfortunately, we have been unable to obtain action on the
nominations of David Ogden to be Assistant Attorney General for the
Civil Division, Don Vereen to be the Deputy Director of the Office of
National Drug Control Policy, Julio Mercado to be Deputy Administrator
of the Drug Enforcement Agency or, of course, Bill Lann Lee to be the
Assistant Attorney General for the Civil Rights Division. They continue
to languish without action before this Committee.
I am very disturbed that the nomination of Randy Moss, to be the
Assistant Attorney General in charge of the Office of Legal Counsel, a
nomination that was reported unanimously by the Committee, was not
confirmed by the Senate yesterday due to last minute, anonymous
Republican objection.
One of our most important constitutional responsibilities as United
States Senators is to provide advice and consent on the scores of
judicial nominations sent to us to fill the vacancies on the federal
courts around the country. Yesterday we made some progress as we
confirmed 16 new judges. For that I thank the Democratic leader and the
majority leader, my counterpart on this Committee, Senator Hatch, and
all those who worked with us to achieve Senate action on those judicial
nominees.
But before any Senator thinks that our work is done for the year,
let us take stock: We are only one-third of the way the number of
judges nominated by a Republican President and confirmed by a
Democratic majority in 1992, and only half way to the levels of
confirmations achieved in 1984 and 1988. We have finally passed the
level of 17 confirmations achieved in 1996, in the year before I became
the Ranking Democrat on the Judiciary Committee. That low water mark is
no measure of success, however.
Today we face more judicial vacancies than when the Senate
adjourned in 1994. That means there are more vacancies across the
country than when the Republic-an majority took controlling
responsibility for the Senate in January 1995. Over the last six years
we have gained no ground in our efforts to fill longstanding judicial
vacancies that are plaguing the federal courts.
In addition, recall that yesterday was the first action that the
Senate has taken on judicial nominees since March 9, when the Senate
ended 4-years of delay and finally voted to confirm Judge Richard Paez
to the Ninth Circuit. For more than two months, for more than 10 weeks,
the Senate has not acted to confirm a single judge, not one. That stall
accounted for the backlog in judicial nominations that results in there
being 16 judicial nominations on the Senate calendar yesterday. On the
other hand, since March 9, seven additional vacancies have arisen and
the Senate has received 17 additional nominations.
There remain 36 judicial nominations pending in the Judiciary
Committee, plus new nominations that the President is sending us every
week. I have challenged the Senate to regain the pace it met in 1998
when the Committee held 13 hearing and the Senate confirmed 65 judges.
That would still be one less than the number of judges confirmed by a
Democratic Senate majority inthe last year of the Bush Administration
in 1992. Indeed, in the last two years of the Bush Administration, a
Democratic Senate majority confirmed 124 judges. It would take an
additional 67 confirmations this year for this Senate to equal that
total.
Over the last five years the Republican-controlled Senate confirmed
the following: 58 federal judges in the 1995 session; 17 in 1996; 36 in
1997; 65 in 1998; and 34 in 1999. By contrast, in one year, 1994, with
a Democratic majority in the Senate, we confirmed 101 judges. With
commitment and hard work many things are achievable.
Of the confirmations achieved this year, seven were nominations
that were reported last year and should have been confirmed last year.
That would have made last year's total slightly more respectable.
Instead, they were held over and inflate this year's numbers. In
addition, Tim Dyk, one of the nominees finally considered yesterday,
was nominated in 1998 and was held over two years. Mr. Dyk was
confirmed overwhelmingly yesterday by a vote of 74-35. I do not
understand why his nomination was held up so long before the Senate.
Moreover, the Republican Congress has refused to consider the
authorization of the additional judges needed by the federal judiciary
to deal with their ever increasing workload. In 1984, and again in
1990, Congress responded to requests by the Chief Justice and the
Judiciary Conference for needed judicial resources. Indeed, in 1990, a
Democratic majority in the Congress created scores of needed new
judgeships during a Republican Administration.
Three years ago the Judicial Conference of the United States
requested that an additional 53 judgeships be authorized around the
country. Last year the Judicial Conference renewed its request but
increased it to 72 judgeships needing to be authorized around the
country. Instead, the only federal judgeships created since 1990 were
the nine District Court judgeships authorized in the omnibus
appropriations bill at the end of last year.
If Congress had timely considered and passed the Federal Judgeship
Act of 1999, S.1145, as it should have, the federal judiciary would
have nearly 130 vacancies today. That is the more accurate measure of
the needs of the federal judiciary that have been ignored by the
Congress over the past several years and places the vacancy rate for
the federal judiciary at 14 percent (128 out of 915. As it is, the
vacancy rate is almost 10 percent (65 out of 852) and has remained too
high throughout the five years that the Republican majority has
controlled the Senate.
Especially troubling is the vacancy rate on the courts of appeals,
which continues at over 11 percent (20 out of 179) without the creation
of any of the additional judgeships that those courts need to handle
their increased workloads.
Most troubling is the circuit emergency that had to be declared
more than seven months ago by the Chief Judge of the Court of Appeals
for the Fifth Circuit. I recall when the Second Circuit had such an
emergency two years ago. Along with the other Senators representing
States from the Circuit, I worked hard to fill the five vacancies then
plaguing my circuit. The situation in theFifth Circuit is not one that
we should tolerate; it is a situation that I wished we had confronted
by expediting consideration of the nominations of Alston Johnson and
Enrique Moreno last year. I still hope that the Senate will consider
both of this year.
I deeply regret that the Senate adjourned last November and left
the Fifth Circuit to deal with the crisis in the federal administration
of justice in Texas, Louisiana and Mississippi without the resources
that it desperately needs. I look forward to our resolving this
difficult situation. I will work with the Majority Leader and the
Democratic Leader to resolve that emergency at the earliest possible
time.
With 20 vacancies on the Federal appellate courts across the
country and nearly half of the total judicial emergency vacancies in
the Federal courts system in our appellate courts, our courts of
appeals are being denied the resources that they need, and their
ability to administer justice for the American people is being hurt.
There continue to be multiple vacancies on the Ninth Circuit. Three
vacancies is too many perpetuating these four judicial emergency
vacancies, as the Senate has in this one circuit, is irresponsible. We
should act on these nominations promptly and provide the Ninth Circuit
with the judicial resources it needs and to which it is entitled.
I am likewise concerned that the Fourth, Sixth and District of
Columbia Circuits are suffering from multiple vacancies.
I continue to urge the Senate to meet our responsibilities to all
nominees, including women and minorities, and look forward to action on
the nominations of Judge James Wynn, Jr. to the Fourth Circuit, Enrique
Moreno to the Fifth Circuit, Kathleen McCree Lewis to the Sixth Circuit
and Judge Johnnie Rawlinson to the Ninth Circuit. Working together the
Senate can join with the President to confirm well-qualified, diverse
and fair-minded judges to fulfill the needs of the federal courts
around the country.
Having begun so slowly in the first five months of this year, we
have much more to do before the Senate takes its final action on
judicial nominees this year. We should be considering 20 to 40 more
judges this year. Having begun so slowly, we cannot afford to follow
the `Thurmond rule'' and stop acting on these nominees at the end of
the summer in anticipation of the presidential election. We must use
all the time until adjournment to remedy the vacancies that have been
perpetuated on the courts to the detriment of the American people and
the administration of justice. I urge all Senators to make the federal
administration of justice a top priority for the Senate for the rest of
this year.
I look forward to prompt and favorable action by the Committee on
the nominees included in today's hearing and look forward to the next
hearing, which I hope will be scheduled for the first week after the
Memorial Day Recess.
[The prepared statement of Senator Moynihan follows:]
Prepared Statement of Daniel Patrick Moynihan, a U.S. Senator From the
State of New York
Mr. Chairman, I am very pleased that the committee is holding a
hearing on Laura Taylor Swain, who has been nominated to be United
States Judge for the Southern District of New York. I hope that the
committee will favorably act on her nomination and the Senate, in turn,
will confirm her.
Laura Taylor Swain is a graduate of Harvard-Radcliffe College and
Harvard Law School. Following graduation she clerked for Judge
Constance Baker Motley, then Chief Judge of the United States District
Court for the Southern District of New York. After completing her
clerkship she joined the law firm of Debevoise & Plimpton, specializing
in employee benefits, ERISA, executive compensation, and employment
law, including Federal and State anti-discrimination statutes. Since
November of 1996 she has served as a United States Bankruptcy Judge for
the Eastern District of New York.
I have every confidence that Laura Taylor Swain will make an
excellent addition to the Court of the Southern District of New York. I
commend her to you without reservation.
The Chairman. The record will remain open until the close
of business on Friday for additional written questions from
Senators. When we get these questions to you, I hope you will
answer them as quickly as possible so that we will have those
in the record.
I don't see any other Senators here. So, with that, we will
recess until further notice, and we wish you all the best.
Thank you.
Ms. Martin. Thank you, Mr. Chairman.
Mr. Garcia-Gregory. Thank you, Mr. Chairman.
Ms. Campbell. Thank you.
Judge Swain. Thank you so much, Mr. Chairman
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Questions and Answers
----------
Responses of Daniel Marcus to Questions of Senator Hatch
Question 1. As the Wall Street Journal reported on Monday, the
Community Oriented Policing Services Office--the so-called COPS
program--has vastly overstated the number of policemen put on the
streets, and has ignored some very serious problems resulting from poor
administration and use of COPS grants. Indeed, the Department of
Justice's own Inspector General determined in its most recent audit
report that only one-half of the widely proclaimed ``100,000'' new
officers have actually been deployed. Moreover, even that figure is
suspect because the COPS office does not maintain an accurate tally of
police officers actually deployed on the streets; it bolsters its
figures by including grants that have not even been accepted let alone
used to hire officers, and by counting equipment such as new radios as
equivalent to a certain number of officers. This program, which costs
the American taxpayers $8.8 billion, reportedly has been used for all
sorts of inappropriate things including the purchase of liquor for
officers. I'd like to know how you are planning to reform the COPS
programs to make sure that the American people are getting their
money's worth from this program, and to stop the COPS office from
making highly misleading public relations statements concerning the
results of the COPS program?
Answer 1. We have made substantial progress in managing the COPS
program more effectively during this past year, and I assure you that
this important program will continue to receive my close attention and
supervision. I believe that COPS is a vital program that is promoting
important goals by assisting local police departments to fight crime by
getting more police officers on the street and involved in community
policing.
Let me address some of the specific points raised by your question.
First, as to the numbers: The Department and the COPS Office have tried
to be careful and accurate in our public statements about our progress
toward achieving the goal of getting 100,000 additional officers on the
street. Since its inception, the program has made grants to fund more
than 100,000 officers--through direct hiring grants and through MORE
(Making Officer Redeployment Effective) grants for purchasing
technology or hiring civilians to free up existing police officers to
be redeployed on the street. There is obviously a time lag (averaging
18 months) caused by the need to hire and train officers before they
can be deployed. But substantial progress is being made: more than
60,000 of the 100,000 funded officers are already on the beat.
The Inspector General's report to which you refer has been taken to
heart by COPS management. The COPS Office and the Office of the
Inspector General have resolved virtually all disagreements as to
specific audit findings, and COPS continues to work with OIG to
implement the recommendations contained in the report. I am confident
that grant management and monitoring in the COPS program have improved
substantially as a result of the concerted effort by the Director of
the COPS Office and his management team to respond to the problems
revealed by the IG report.
Management of a major grant program like COPS requires constant
attention to assure, as you put it, that ``the American people are
getting their money's worth'' from the program. I assure you that
Director Frazier and I will keep up our efforts to build on the
progress already made in improving program management.
Question 2. I am concerned about the politicization of the
Department and the perception that it has brought the tobacco suit for
political reasons. I am concerned that if this is true, no industry
would be immune from efforts by the federal government to use
litigation as a tool to regulate unpopular industries. This would
bypass Congress' constitutional role to set policy through the
legislative process. I believe that the federal tobacco suit may be the
start of a pernicious trend to sue entire industries--which was never
done until very recently--in order to coerce settlements or force
judgments that ipso facto regulate entire sectors of our economy.
Don't get me wrong, I am against tobacco use and believe that the
tobacco companies have been bad actors. Senator Feinstein and myself
introduced legislation that regulated tobacco and would have cost the
companies over $400 billion. But such regulation is the job of Congress
under our Constitution and in a democracy. And it doesn't matter if
Congress is slow to Act. That is the will of the representatives of the
American people. The danger is that such litigation is undemocratic and
violates separation of powers. This is the view of many Senators and
former Clinton Labor Secretary Robert Reich, who vehemently opposes
such government lawsuits and said so in the Wall Street Journal. Would
you comment? Does the Department have any other block-buster litigation
planned?
Answer 2. I share your opinion that the Justice Department should
be wary of using litigation as a tool to regulate unpopular industries.
Congress, not the courts should make the policy decisions about how to
regulate our economy. The tobacco lawsuit, I can assure you, is based
on the unusual history and conduct of that industry and is not the
forerunner of similar litigation against other industries.
When I arrived at the Department in April 1999, consideration of a
possible lawsuit against the cigarette companies to recover
expenditures by Medicare and other federal programs on cigarette-
related illnesses was already underway. That process continued right up
to the final decision by the Attorney General to approve the lawsuits
the day before it was filed last September. It was a very careful
process in which we focused not only on the merits of the potential
lawsuit but also on the policy question of whether such a suit was
appropriate. We concluded that the lawsuit has substantial merit, and
that filing it would not establish a harmful precedent for other
industries with products whose safety or environmental impact has been
questioned. We remain convinced that there are special facts about
cigarettes and the tobacco companies that make this suit against the
tobacco industry appropriate: the industry's history of misleading the
public about the safety of cigarettes and the addictiveness of
nicotine; the suppression of research results; the manipulation of
nicotine levels in cigarettes; and the targetting of young people as
consumers. We are not aware of any other industry with a similar
history and pattern of conduct.
Question 3. I have to say that I am not happy about not being
informed about the tobacco lawsuit. Indeed, I learned about the filing
of the lawsuit in the Washington Post. As the oversight Committee for
the Department, I believe the Committee ought to be better informed
about the Department's activities. What steps will you take to improve
consultations?
Answer 3. As you know, the Department very much regrets that leaked
information resulted in the publication of a newspaper report about our
plans to file the tobacco lawsuit before you were informed that the
suit would be filed. Because it is important to maintain the
independence of the Justice Department's decisional process in
determining whether to bring lawsuits (and some areas--like criminal
and enforcement matters--are particularly sensitive), there are limits
on the extent to which we should disclose our litigation plans to the
Congress before we file suit. But we have learned from our experience
with the tobacco case, and I can assure you that where you or the
Committee express interest in a particular prospective lawsuit, we will
do everything we can to notify you of our decision to sue
contemporaneously with or before public announcement of the suit or
disclosure to the press. We also will be happy to provide briefings on
such litigation after it is filed.
Question 4. The Department of Housing and Urban Development has no
independent litigating authority and yet it has interjected itself in
the suits against the firearms industry, particularly in the settlement
talks. My understanding is that DOJ has opined that no federal cause of
action exists against he firearms manufacturers. Think of the
implications if the United States intervenes in lawsuits--not as a
party plaintiff or defendant to legitimately uphold the rule of law--
but as political club to force settlements that bypass the policy-
making role of Congress. In light of this do you not think improper
that HUD has taken a role in support of one side of the litigation?
Answer 4. While the Justice Department is not contemplating or
considering any federal lawsuit against the firearms industry, it is
true that HUD assisted public housing authorities funded by HUD (which
are not themselves federal entities) in investigating a possible
lawsuit by those housing authorities against firearms manufacturers.
The Department of Justice did not assist HUD in that effort.
No such lawsuit has in fact been brought, nor has HUD or any other
federal agency intervened in the lawsuits against the manufacturers
brought by a number of cities and states. HUD and Treasury did,
however, negotiate an agreement with one leading firearms manufacturer
to make changes in the manufacture and distribution of its products
that were consistent with Administration policy and proposals on gun
safety.
I agree with you that the United States must be very cautious in
using litigation or the threat of litigation as a means of reforming an
industry, and that Congress, not the courts, is in the best position to
make these kinds of far-reaching decisions. The Department of Justice
will continue to maintain a skeptical view of industry-reform
litigation, particularly where such litigation is not supported by
specific statutory or regulatory authority.
Question 5. I've worked for many years to protect he religious
freedoms of Americans. I believe that such freedoms are among the very
most fundamental and important rights protected by the Constitution.
The Clinton administration supported the Religious Freedom Restoration
Act which passed a few years ago and has been struck down by the
Supreme Court. I'm now working on the Religious Liberty Protect Act.
Will you make a commitment not only to supporting such legislation but
also to working with me to pass legislation on this topic this year?
Answer 5. As you note in your question, the Administration has
shared your concerns about ensuring that federal, state and local
governments protect and preserve the precious religious freedoms of
Americans. We supported the Religious Freedom Restoration Act, and we
shared your disappointment in the Supreme Court's decision in City of
Boerne. The Justice Department believes it is possible to craft
targeted legislation that will pass constitutional muster. We will be
happy to work with you and your staff to craft and enact legislation on
this important subject.
Question 6. The Judiciary Committee along with other congressional
committees, have experienced a great deal of frustration in conducting
oversight of the Justice Department. Requests for documents and other
information are generally met with conciliatory statements and
indications of cooporation--but actually getting documents from the
Justice Department is like pulling teeth. The Department has
stonewalled us citing ``Department policy,'' ``deliberative process''
and ``sensitive matters''--all the while denying the Congress--and the
American people--the necessary information to evaluate the performance
of the Justice Department. Despite the overwhelming support in the case
law upholding the Congress' authority to get information related to its
oversight function--including information relevant to internal
deliberations by prosecutors and open investigations--the Justice has
refused to produce materials simply because of Departmental policy.
For example, the Department of Justice has refused to produce
certain materials related to the Loral Hughes matter, solely on the
basis that it would go against Department policy with regards to open
cases. This is despite the fact that courts--from investigations since
Teapot Dome to Iran Contra--have rules that Congress is entitled to
information on open cases.
When a subpoena is issued to the Justice Department do you believe
that it is proper to refuse to produce documents on the basis of
anything other than a recognized legal privilege such as executive
privilege or attorney client privilege? What will you do to ensure that
the Department fully complies with congressional subpoenas?
Answer 6. I agree that, absent a legal impediments such as Rule
6(e) (grant jury information), the Department should produce documents
sought by a Congressional committee unless there is a basis for
asserting executive privilege. I also would emphasize our long-standing
policy of making a request to the President to assert executive
privilege only in the most compelling circumstances and after good
faith negotiations to accommodate Congress's requests have failed. That
policy was set forth in a 1982 memorandum by President Reagan:
The policy of this Administration is to comply with
Congressional requests for information to the fullest extent
consistent with the constitutional and statutory obligations of
the Executive Branch. While this Administration, like its
predecessors, has an obligation to protect the confidentiality
of some communications, executive privilege will be asserted
only in the most compelling circumstances, and only after
careful review demonstrates that assertion of the privilege is
necessary. Historically, good faith negotiations between
Congress and the Executive Branch have minimized the need for
invoking executive privilege, and this tradition of
accommodations should continue as the primary means of
resolving conflicts between the Branches.
Thus, the Department believes that we should continue to engage
with the Committee in a good faith process of accommodation of the
Committee's oversight needs and the Department's institutional
concerns. Of course, some disagreements in the process of accommodation
are perhaps inevitable. You have my commitment, however, that when I
and those who report to me are involved in this process, I will be
candid and forthright in dealing with Members and staff, and I will
work hard to make sure that your investigative and oversight needs are
met and that any disagreements are resolved as quickly as possible.
______
Responses of Daniel Marcus to Questions From Senator Sessions
Question 1A. In 1999, Bill Lann Lee, Acting Assistant Attorney
General in charge of the Civil Rights Division under your authority,
began an investigation of a high school in Asheville, North Carolina.
The investigation related to the school's use of an Indian for a high
school mascot.
Mr. Marcus, do you think that it is appropriate legal policy for
the Justice Department, under your subordinate Bill Lann Lee, to expend
resources to force school districts to change their mascots?
Answer 1A. The investigation to which you refer was begun and
completed before I joined the Department. To respond to your question,
I have informed myself as to the investigation, and I am satisfied that
it was handled appropriately by the Civil Rights Division.
The Department received a written complaint from parents of
American Indian children who attended the Buncombe County (N.C.) Public
Schools, alleging that their children were being denied equal
educational opportunities on account of the children's race or national
origin, American Indian. Specifically, the parents alleged that their
children were being subjected to a racially hostile environment at the
Clyde A. Erwin High School, which used the terms ``warriors'' and
``squaws'' to describe male and female students, respectively, and
which used American Indian religious symbols in allegedly offensive
and/or disrespectful ways. Because these allegations, if true, might
have implicated our enforcement responsibilities under Title IV of the
Civil Rights Act of 1964, we opened a preliminary inquiry to determine
whether action by the Department was warranted. Our inquiry did not
focus solely on the school's choice of mascot but more generally on the
allegations that Native American students were subjected to a racially
hostile environment. Such claims fall within the Department's
jurisdiction, and it is appropriate for the Division to make inquiries
about credible allegations of a racially hostile school environment. We
have no general policy about school mascots.
Question 1B. How many times in the history of the Justice
Department has the Civil Rights Division investigated high-school-
mascot complaints?
Answer 1B. Title IV of the Civil Rights Act is triggered by a
complaint from a student or parent. This was the first time that the
Department received a complaint alleging a racially hostile environment
based, in part, on the existence of allegedly offensive school mascots.
Question 1C. What was the date of the letter sent by the Justice
Department to the school district that tentatively resolved the issue?
Answer 1C. By letter dated March 4, 1999, the Civil Rights Division
informed the school district that we were closing our preliminary
inquiry into the allegations of a racially hostile environment and
denial of educational opportunities after reaching agreement on
positive changes aimed at improving the school environment for all
students. Those changes did not include a change in the school mascot.
Question 1D. What was the date that Bill Lann Lee, your
subordinate, was renominated to be Assistant Attorney General for Civil
Rights?
Answer 1D. The President renominated Bill Lann Lee on March 5,
1999.
__________
Responses of Bonnie J. Campbell to Questions From Senator Sessions
Question 1A. Ms. Campbell, as an 8th Circuit Judge you would have
to review the decisions and records of trial courts. Please list the
number of cases that you have personally tried to verdict before a jury
before state courts?
Answer 1A. I have not tried any case to a verdict before a jury in
state court, however, while I was in private practice, I appeared in
trial proceedings in state court frequently. I handled a broad range of
legal concerns, but my work focused primarily on family and employment
discrimination law. In family law cases, I represented both husbands
and wives and dealt with a full range of dissolution issues, including
property division, child custody, alimony, and child support. I also
represented juveniles in delinquency cases, served as guardian ad litem
for minor children, represented clients in criminal cases, and managed
a number of complex personal injury cases.
While I no longer have access to may files from private practice, I
estimate that I tried fifteen to twenty cases in state court, mostly
family law cases which are equity cases tried to the court rather than
a jury. Nonetheless, I wrote all the pleadings and briefs, appeared in
court regularly on pre-trial motions, handled all discovery matters,
including writing and responding to interrogatories, conducted
depositions, retained expert witnesses, examined witnesses at trail,
handled the introduction of exhibits, presented opening and closing
arguments, and dealt with all post-trial matters.
In employment law cases, the majority of my cases and work was for
defendants, although I did some plaintiffs' work. My clients included
business entities facing issues ranging from hiring and firing issues
to wage disputes to employment discrimination and sexual harassment. In
this context, I became quite familiar with administrative law and
procedures because I frequently represented clients before various
administrative boards and agencies. While I did a fair amount of pre-
trail writing of pleadings and I did appear in court as necessary, in
these employment cases my primary focus was on providing legal advice
and training to employer-clients in the hope of preventing the need to
go to trail.
Question 1B. Before federal courts?
Answer 1B. I have not tried any case to a verdict before a federal
court, however, in private practice, I represented a number of clients
in matters before the federal courts. In one instance, my firm
represented a large corporate entity, Kmart, in a contract dispute
involving the potential for substantial monetary damages, and I was
responsible for much of the pre-trail discovery and trail preparation
for this case.
The case was tried by my partners before a jury in the federal
district court and ultimately was appealed to the Eighth Circuit, which
ruled in favor of Kmart. In another case involving an antitrust matter,
I prepared a number of pleadings and briefs' and represented my client
in an evidentiary hearing. Additionally, one of the firm's partners was
a Trustee in Bankruptcy Court, and I frequently prepared pleadings and
other documents for him and occasionally appeared in Bankruptcy Court
on matters with which I was assisting him.
As Iowa Attorney General from 1991 to 1995, I worked closely with
staff attorneys in the development of significant cases before the
federal courts. While I did not personally try the cases, in many
instances, I directed the litigation strategy and made key decisions
with respect to whether and how the State would proceed with its case.
One example of an extraordinary complex legal matter is the Iowa Trust
litigation which encompassed several cases in state and federal courts.
The legal proceedings involved the fraudulent conversion of $107
million in public funds from Iowa cities that had banded together to
invest municipal funds in an entity that became known as Iowa Trust.
The end result of the litigation was 100% recovery of the lost funds,
as well as recovery of the costs of litigation for Iowa Trust
participants. Aspects of the case were tried in state court in Polk
County, Iowa; the Iowa Supreme Court; the federal district court in the
Northern District of Iowa; the federal district court in Colorado; the
Court of Appeals for the Tenth Circuit; and several California state
and federal courts. I personally participated in setting out the
initial litigation strategy and reviewing that strategy on a regular
basis and frequently consulted with the various attorneys in the office
who were handling the many different aspects of the case.
Question 2A. Ms. Campbell, as a federal appellate judge, you would
have to sit in cases that are orally argued before the bench and engage
in questioning with lawyers. You would also have to evaluate the
strength of these lawyers' arguments. Please list the number of cases
for which you have personally led oral argument in state appellate
courts.
Answer 2A. I have not personally had any oral arguments in state
appellate courts, however, I believe my experience as Iowa Attorney
General has given me insight into the role of an appellate judge. In
the Attorney General's office, staff attorneys consulted frequently
with me about cases before the Iowa Court of Appeals and the Iowa
Supreme Court, as well as the federal circuit courts. Often, attorneys
involved with cases--especially high profile or novel cases--disagree
with each other about legal strategy, and they presented their
positions to me for a final determination in the matter. My experience
in this context was somewhat similar to that of an appellate court
judge in that I was frequently placed in the position of having to
evaluate cases, consider the strength of arguments, and the wisdom
ofrecommended legal strategies. In the final analysis, I made the
decision about which arguments and strategies were most consistent with
the best interests of the State and which the State would, therefore,
pursue. While I did not personally argue these cases and certainly was
not directly involved with every case in my office, I was intimately
involved with the development of many of the most significant cases my
office had before the courts.
Since staying abreast of court decisions--especially appellate
court decisions that affected the rights and interests of Iowans and
the State of Iowa--was a key part of my responsibilities as the State's
chief legal officer, I worked very hard to follow the decisions of the
Iowa and federal appellate courts. Moreover, I was often asked to
comment publicly on judicial decisions, so I had to be familiar with
the cases being decided by the Iowa and federal appellate courts as
well as those pending before the courts.
In my current position as Director of the Violence Against Women
Office at the Department of Justice, I have worked closely with federal
prosecutors in developing their arguments and strategies in various
prosecutions under the Violence Against Women Act before both federal
district courts and on appeal--before federal circuit courts. I have
also had the opportunity on several occasions to work closely with the
Solicitor General's Office in reviewing and analyzing cases for
possible appeal to federal circuit courts or the Supreme Court. Also, I
have conducted many training seminars for federal prosecutors on their
responsibilities under the Violence Against Women Act, including how
they can best develop their cases for effective prosecutions.
Question 2B. In federal appellate courts?
Answer 2B. I have not personally had any oral arguments in federal
appellate courts, however, during my years in private practice, I
worked on several cases before the Eighth Court of Appeals for the
Eighth Circuit but did not argue the cases.
In addition, State Attorneys General offices are the largest
practitioners before the circuit courts of appeals. Consequently, I
regularly worked closely with staff attorneys to develop the legal
position of the State in cases before the various appellate courts, as
I have indicated in my previous response. While I cannot say how many
cases I was directly involved with during my tenure as Iowa Attorney
General, I can say that my office had many cases of great importance to
the citizens of Iowa before various federal circuit courts, usually the
Eighth Circuit, and that the more significant the impact of a court's
decision would be for our citizens, the more likely I was directly
involved with the decision-making relative to the case.
In my current position as Director of the Violence Against Women
Office at the Department of Justice, I have had numerous opportunities
to work closely with federal prosecutors in developing their arguments
and strategies in various prosecutions under the Violence Against Women
Act before both federal district courts and on appeal before federal
circuit courts. On several occasions, I have worked closely with the
Solicitor General's Office in reviewing and analyzing cases for
possible appeal to federal circuit courts or the Supreme Court. I have
conducted many training seminars for federal prosecutors on their
responsibilities under the Violence Against Women Act, including how
they can best develop their cases for effective prosecutions.
I believe that my years working in the legislative branch, my
experience in private practice, my tenure as Iowa Attorney General, and
my service as Director of the Violence Against Women Office have given
me a strong foundation in the law and knowledge of the work of the
federal courts, a well as a special understanding of and appreciation
for the separation of powers among the branches of government.
Question 3A. In your campaign for governor of Iowa in 1994, you
opposed the death penalty. You opposed the death penalty as the
Attorney General of Iowa. You argued that it was more expensive to
execute a convicted murderer than it was to keep them in prison for
life. What is your current position on the death penalty in general?
With respect to a judge's duty to interpret the law?
Answer 3A. The Supreme Court has held unambiguously that the death
penalty is constitutional. It is the absolute duty of a judge to follow
Supreme Court precedent, and I can assure you that, if I am confirmed,
I will always do so.
Question 3B. When a federal or state legislature rules that the
death penalty is appropriate for premeditated and aggravated murder, is
it the duty of the Executive Branch to carry out that legislative
policy choice even though it is more expensive? Is it the legislature
who should strike the balance between effective punishment and
financial cost? Is it a judge's duty to enforce the policy choice of
the legislature?
Answer 3B. It is the duty of the Executive Branch to carry out
legislative policy choices, irrespective of cost, and I always did so
as Iowa Attorney General. It is the legislature which should strike the
balance between effective punishment and financial cost. It is a
judge's duty to enforce the policy choice of the legislature.
Question 4A. As a candidate for Governor of Iowa in 1994, you
indicated that religious groups, which you termed the ``radical
right,'' were out to destroy . . . education.'' You are further quoted
as saying with respect to politically active religious persons, ``I
promise you that when there is a discussion on education policy, there
is one group that is not going to be there and that is them.'' Do you
believe that conservative religious people should be excluded from
political discussions on education or other issues?
Answer 4A. The words quoted were spoken in the heat of a campaign
in which overstated things were being said on both sides. I regret
saying them. These comments do not suggest an individual who is always
respectful of the views of others, which I consider myself to be. I do
not believe that conservative religious people should be excluded from
political discussions on any issues.
Question 4B. Do you believe that the Free Speech Clause of the 1st
Amendment to the U.S. Constitution applies equally to religious people
as to non-religious people?
Answer 4B. I believe that the Free Speech Clause of the First
Amendment to the U.S. Constitution applies equally to religious people
as to non-religious people.
Question 5. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect, even if you personally disagree with such precedents?
Answer 5. Yes. I am committed to following the precedents of higher
courts faithfully and giving them full force and effect, even if I
personally disagree with such precedents.
Question 6. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores where the Court struck down the Religious
Freedom Restoration Act.
Answer 6. If I am fortunate enough to become a federal circuit
court judge, I will be obligated to follow, and I will follow, Supreme
Court precedent, as well as precedent of the Eighth Circuit, even if I
believed the Courts had seriously erred.
Question 7. Regardless of your personal feelings on these issues,
are you committed to following precedent of higher courts on equal
protection issues?
Answer 7. Yes. I am committed to following precedent of higher
courts on equal protection issues, and all issues.
Question 8. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 8. No. I have no legal or moral beliefs which would inhibit
or prevent me from imposing or upholding a death sentence in any
criminal case that might come before me as a federal judge.
Question 9. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 9. Delays of the length you describe certainly seem
excessive. Once Congress or a state legislature has made the policy
decision that capital punishment is appropriate, federal courts should
uphold the will of Congress and state legislatures, using as guidance
any Supreme Court or other relevant and binding precedent. Further,
Congress has enacted legislation to address prisoner litigation, and
the Eighth Circuit has uphold one of the recent statutes against a
constitutional challenge, Gavin v. Branstad, 122 F.3d (Prison
Litigation Reform Act provision requiring immediate termination of
prospective relief in absence of certain findings by district court did
not violate separation of powers doctrine, equal protection or due
process.)
Question 10. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of each of these authorities is
consistent with the exercise of the Article III judicial power.
Answer 10. A federal judge must look to the Constitution and
Supreme Court or circuit precedent, if any, for guidance in determining
the legal effect of a constitutional provision. A federal judge must
look to the plain language in the statute to determine its meaning or
effect. If a constitutional provision or a statute is unclear or its
application in a given context uncertain, a federal judge may review
the constitutional debates or legislative history. In the case of a
federal appellate court judge, precedent of the circuit court is also a
source of legal authority. Federal district court judges are also bound
by the law of their circuit court as well. These authorities recognize
that federal courts are limited by the Constitution, by statute, and by
a higher court precedent.
Question 11. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and the
original intent of the Framers of the Constitution; (2) discernment of
the ``community's interpretation'' of constitutional text, see William
J. Brennan, The Constitution of the United States: Contempory
Ratification, Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 11. Clearly, approach one--interpretation of the plain
meaning of the language in the Constitution and the original intent of
the Framers of the Constitution--is legitimate. Also, if Congress or
the state legislatures determines that a right needs to be established
which was not contemplated by the Constitutional authors, then the
proper mechanism for establishing such a right is amendment of the
Constitution through the process outlined in Article V of the
Constitution. This approach is also entirely legitimate to establish a
constitutional right not previously upheld by a court.
Justice Brennan's ``community's interpretation'' approach is not a
legitimate approach establishing a constitutional right not previously
upheld by a court. It is not the responsibility of judges to attempt to
ascertain the ``community's interpretation'' of constitutional text.
Our Constitution mandates a separation of powers and vests the
authority to determine such community sentiments in the political
branches of the government
Question 12. How would you, if confirmed, analyze a challenge to
the constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 12. If a case or controversy involving the constitutionality
of a statute came before me, I would look first to the statute,
consider its plain meaning, and assume its constitutionality. I would
then look to the Constitution and Supreme Court precedent for guidance,
and would follow the Supreme Court or other controlling precedent as
required.
While cases of first impression are rare, if a such a case came
before me in a case or controversy, I would presume the statute is
constitutional, look the plain meaning of the Constitution and of the
statute in question, and next to the Supreme Court for guidance. If
there were no Supreme Court precedent, then I would review the Supreme
Court's holdings in analogous cases and look to other jurisdictions for
similar cases. In both circumstances, I would strive to uphold the
legislative enactment.
Question 13. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of these sources of law impact the
source of the judicial power and the federal government's power under
Article III?
A. Griswald v. Connecticut, 381 U.S. 479 (1966).
Answer 13A. In Griswold v. Connecticut, The Supreme Court found a
``zone of privacy'' that ``emanated'' from several of the first ten
amendment--The First, Third, Fourth, Fifth, and Ninth--as a basis to
recognize a ``privacy right'' in marital relationships that was invaded
by a Connecticut law restricting married couples' access to birth
control. In reaching this holding, the Court relied upon prior
decisions that recognized a constitutional basis for privacy-related
rights that gave effects to rights explicitly enumerated in the
Constitution. Because constitutional adjudication traditionally looks
primarily to the text of the Constitution, Griswold's use of other
sources to help define the meaning of the Constitution was a departure.
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 11B. The Supreme Court in Alden v. Maine held that the
Eleventh Amendment barred lawsuits against a state by its own citizens
on the basis of a right in federal law, unless the state consented to
the action. The Court reasoned that the Eleventh Amendment embodies a
broader principle of sovereign immunity than its text, which seemingly
bars only lawsuits in federal court by a citizen of one state against
another state, would indicate.
Question 14. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress's
power and on the federal government's power compared with the power of
state governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
Answer 14A. In this case, the Supreme Court upheld the
constitutionality of a federal law that prevented individual farmers
from growing more than a pre-determined amount of wheat. The Court
reasoned that the law fell within Congress' power to regulate
``Commerce . . . among the several States'' because overproduction by
individual farmers, in the aggregate, could affect the interstate wheat
market and thus interstate commerce. Wickard recognized a broad
Constitutional power to enact legislation under the Commerce Clause.
B. United States v. Lopez, 514 U.S. 549 (1995).
Answer 14B. The Supreme Court in United States v. Lopez struck down
the federal Gun-Free School Zones Act which made it a crime to
knowingly carry a firearm within a ``school zone.'' The Court held that
the Act exceeded the Commerce Clause authority of Congress as defined
by Wickard because the aggregate effect of carrying guns near schools
did not, in the Court's view, substantially affect interstate commerce.
In reaching this holding, the Court stressed the non-economic nature of
the regulated activity.
Both Wickard and Lopez interpreted the boundaries set by the
Commerce Clause on Congress' power to regulate matters affecting the
states.
Question 15. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
Answer 15. The Constitution specifically enumerates the powers
vested in the federal government and reserves all remaining power to
the states or to the people. In the cases listed below, the Supreme
Court has been called upon to determine whether an official act
improperly exceeds the Constitution's grant of limited powers.
A. United States v. Lopez, 514 U.S. 549 (1995).
Answer 15A. In this case, the Supreme Court held that the Gun-Free
School Zones Act exceeded Congress' authority to enact legislation
under the Commerce Clause. This case reaffirms limits on the commerce
power regarding activities traditionally regulated by the states.
B. Printz v. United States, 521 U.S. 898 (1997).
Answer 15B. The Supreme Court held in Printz v. United States that
certain interim provisions of the Brady Handgun Violence Prevention Act
unconstitutionally pressed state law enforcement officers into federal
service by requiring them to run background checks on prospective gun
buyers and to perform other related duties. Adhering to its prior
precedent that the Tenth Amendment forbids Congress from commandeering
a state's legislature to enact legislation that effectuates federal
law, the Court in Printz held that Congress also may not commandeer a
state's executive officers to execute federal law. This decision
reaffirmed the Court's precedent placing certain types of federal
legislation that imposed duties on the states outside of Congress'
power to enact. The Court held that Congress had no greater power under
the Tenth Amendment.
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 15C. Alden v. Maine construed the Eleventh Amendment to bar
lawsuits by state employees against a state under the Fair Labor
Standards Act in the absence of the state's consent. This decision,
which followed earlier precedent, established a principle of sovereign
immunity broader than the text of the Eleventh Amendment by placing
limits on when Congress can require states to be litigants without
their consent.
D. Baker v. Carr, 369 U.S. 186 (1962).
Answer 15D. In this case, the Court held that a civil action
challenging as unconstitutional a Tennessee statute apportioning the
members of the General Assembly among the State's counties was not a
``political question'' outside the competence of the judiciary to
adjudicate. The Court's opinion reduced the scope of the ``political
question'' doctrine, allowing courts to consider challenges to
apportionment.
E. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 15E. This case involved an action brought by North Carolina
residents challenging North Carolina's congressional redistricting
plan. The Court held that the residents had stated a claim under the
Equal Protection Clause by alleging that the state had adopted a
reapportionment scheme based on race, and thus the strict scrutiny
standard applied.
Question 16. Do you believe that a federal district court has the
institutional expertise to set rules for and oversee the administration
of prisons, schools, or state agencies?
Answer 16. No. I do not think that the federal trial courts have
the institutional expertise to set rules for and oversee the
administration of prisons, school, or state agencies.
Question 17. In ruling on the constitutionality of a statute, what
weight should a court give to the fact that the challenged statute
existed before and after the ratification of the constitutional
provision at issue. Assume the court faces this issue as a matter of
first impression.
Answer 17. If I were fortunate enough to be confirmed as a federal
circuit court judge and I were confronted with a case or controversy
involving such an issue as a matter of first impression, I would apply
the maxims of statutory construction. I would start with the
presumption that the statute is constitutional. Then, I would look to
the plain meaning of the statute and to the Constitution and consider
the historical facts surrounding ratification of the constitutional
provision at issue. I would take note of the fact that the challenged
statute had not been repealed or (if it were the case) expressly
addressed by the subsequent constitutional provision, and I would look
to determine whether there was any legislative history to the
constitutional provision that addressed the statute or how it should be
read. Next, I would review Supreme Court precedent, and if there were
none, I would then consider analogous cases in the Supreme Court and
other jurisdictions in order to find precedential guidance in the
matter.
______
Responses of Bonnie J. Campbell to Questions From Senator Thurmond
Question 1. We frequently hear the argument that the courts act in
response to various social problems because the legislature has failed
to act on important issues. What is your view of courts acting in this
manner?
Answer 1. Judges must abide by the separation of powers established
in our Constitution and should understand that legislatures may choose
not to act. Legislative inaction should not be considered an oversight
by the legislators. If legislatures choose not to address a matter or
leave an issue unaddressed, it is not the responsibility of courts to
step in.
Question 2. Do you have any personal objections to the death
penalty that would cause you to be reluctant to impose or uphold a
death sentence?
Answer 2. No. I have no personal objections to the death penalty
that cause me to be reluctant to impose or uphold a death sentence.
Question 3. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a Federal judge.
Answer 3. If I am fortunate enough to be confirmed, I will have no
reluctance to impose or uphold mandatory minimum criminal sentences.
Question 4. As you are well aware, the sentencing of criminal
defendants in Federal court is conducted under the Federal Sentencing
Guidelines. Some argue that the Guidelines do not provide enough
flexibility for the sentencing judge, while others say the Guidelines
provided needed consistency. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 4. Congress adopted the Federal Sentencing Guidelines, and
they have been held to be constitutional. If I am fortunate enough to
be confirmed as a federal appellate court judge, I will faithfully
follow the mandates of the Federal Sentencing Guidelines.
Question 5. Recently, the Supreme Court found that Congress does
not have the authority under the Commerce Clause and the Fourteenth
Amendment to address violence against women. The Court wrote: ``If
Congress may regulate gender-motivated violence, it would be able to
regulate murder or any other type of violence since gender-motivated
violence, as a subset of all violent crime, is certain to have lesser
economic impacts than the larger class of which it is a part. You are
currently serving as Director of the Department of Justice's Violence
Against Women Office. Do you agree with the Supreme Court's decision?
Answer 5. The Supreme Court's recent decision in United States v.
Morrison invalidated the federal cause of action for victims of sexual
assault, rape, and other sexually-related violence against their
assailants for damages, but it did not address other provision of the
Violence Against Women Act. In my role as Director of the Violence
Against Women Office, I publicly expressed my policy view that the
Supreme Court should uphold this provision of the Violence Against
Women Act. However, if I am confirmed, I can assure you that I would
follow the Supreme Court's precedent with respect to the issues
presented in this case, and all other cases.
Question 6. Do you believe that state courts and justice systems
are as capable as federal courts in providing fair hearings and
treatment for women who are victims of violence?
Answer 6. Congressional hearings amassed a great deal of evidence
suggesting that women who are victims of domestic and sexual violence
are frequently discriminated against in the criminal justice system.
Since these cases have historically been handled at the state level, it
is impossible to know how state courts would compare to federal courts
in this regard. The approach of the Violence Against Women Office was
to direct resources to criminal justice officials at all levels and
improve the response to women victims of domestic and sexual violence
across the criminal justice system.
Question 7. If you were a federal judge, would you consider it
appropriate for domestic violence cases to be heard in your court?
Answer 7. If I am fortunate enough to be confirmed, I would follow
the Code of Conduct for federal judges, and always err on the side of
caution, to assure that I avoid even the appearance of bias.
Question 8. Is prior courtroom experience important for a nominee
for the federal bench?
Answer 8. It is important for a candidate for the federal appeals
court to have a knowledge and understanding of pre-trial litigation
practice and trial practice--civil and criminal, the rules of evidence,
and other basic process and structural aspects of litigation, as well
as the appeals process, its standards, rules and practices. Courtroom
experience, of which I have some, is of course, valuable.
I believe that my years working in the legislative branch, my
experience in private practice, my tenure as Iowa Attorney General, and
my service as Director of the Violence Against Women Office have given
me a strong foundation in the law and a keen knowledge of the work of
the federal courts, as well as a special understanding of and
appreciation for the separation of powers among the branches of
government and the Constitution's division of power between the States
and the federal government.
______
Responses of Bonnie J. Campbell to Questions From Senator Ashcroft
Question 1. In your view, to what extent, if any, do the rights
protected by the Constitution grow or shrink with changing historical
circumstances?
Answer 1. The rights protected by the Constitution are set forth in
that document or found there by the Supreme Court; they do not grow or
shrink with changing historical circumstances. From time to time, they
may have to be applied in new contexts as technological developments
create new situations and present new issues.
Question 2. If a particular judge or court has a high rate of
reversal on appeal, or by the Supreme Court, is that a problem? If it
is, what can and should be done to remedy that problem?
Answer 2. It is a problem. Any judge with a high reversal rate
should examine the appellate court opinions and her understanding of
her role and the way she is doing her job to remedy this problem.
Question 3. Is ``substantive due process'' a legitimate
constitutional doctrine?
Answer 3. The Supreme Court addressed this question in Washington
v. Glucksberg, 521 U.S. 702 (1997) and identified a small number of
``fundamental rights and liberty interests'' specially protected by the
Due Process Clause. The Court expressed its reluctance to expand the
concept of substantive due process beyond these ``fundamental rights
and liberty interests'' because to do so would ``place the matter
outside the arena of public debate and legislative action.'' Id. at
720. Substantive due process is still recognized by the Supreme Court
but clearly will rarely be applied by the Court.
Question 4. Is it appropriate for federal judges to recognize new
``substantive due process'' rights? If yes, what should the guiding
principles be?
Answer 4. It is appropriate for federal judges to follow Supreme
Court and circuit court precedent. The guiding principles are to look
first to the Constitution and then to Supreme Court, and circuit court
precedent. In this regard, I would look to Justice Rehnquist's majority
opinion in Washington v. Glucksberg discussing the very limited scope
of substantive due process.
Question 5. What is your understanding of the holding in United
States v. Lopez, 514 U.S. 549 (1995)? What test would you apply to
determine if a statute exceeded the power of Congress to enact under
the Commerce Clause?
Answer 5. The Supreme Court in United States v. Lopez struck down
the federal Gun-Free School Zones Act, a law which made it a crime to
knowingly carry a firearm within a ``school zone,'' holding that the
Act exceeds the Commerce Clause authority of Congress. The Court held
that this law did not have a sufficient effect on interstate commerce;
that the Act contained no jurisdictional requirement that the firearm
at issue had traveled across State lines; and that Congress had made
scant findings about the interstate effects of the criminal act at
issue. Consequently, the Court concluded that it was left with a law
that dealt with criminal activity--not economic activity--which was on
its face, unsupported by any link to interstate commerce. The Court
rejected the Government's argument that the ``costs of crime'' in
general justified the law on the grounds that such an argument would
justify a general federal ``police power,'' which the Court said was
inconsistent with the structure of the federal system of government.
The test outlines in Lopez states the Congress may regulate: (i)
the use of the channels of interstate commerce; (ii) the
instrumentalities of interstate commerce, or persons or things in
interstate commerce; and (iii) those activities ``having a substantial
relation to interstate commerce'' because they ``substantially affect
interstate commerce.''
Question 6. Do you think that there is tension between the Supreme
Court's holdings in Romer v. Evans, 517 U.S. 620 (1996) and Bowers v.
Hardwick, 478 U.S. 186 (1986)? If there is, how would you reconcile
that tension? If there is not, how are they reconcilable?
Answer 6. I believe that these cases are reconcilable in that they
arise under different clauses of the Fourteenth Amendment to the
Constitution, and because one (Romer) involved the political process,
and the other (Bowers) involved a claimed right to certain sexual
conduct. The Supreme Court, in Romer v. Evans, applying the standard of
rational basis scrutiny, struck down a Colorado constitutional
amendment that would have precluded state and local governments from
enacting laws prohibiting discrimination on the basis of sexual
orientation. The Court concluded that the constitutional amendment
``lacks a rational relationship to legitimate state interests'' and,
therefore, violates the Equal Protection Clause.
The Court in Bowers v. Hardwick, held that the State of Georgia
could criminalize private, consensual homosexual conduct. In its
opinion, the Court wrote that ``The law . . . is constantly based on
notions of morality, and if all laws representing essentially moral
choices are to be invalidated under the Due Process Clause, the courts
will be very busy indeed.'' Bowers has not been overturned by the
Supreme Court and must be followed by district and circuit court judges
in applicable cases.
Question 7. Is there a legislative classification that would fail
rational basis review?
Answer 7. Generally, State and Federal laws are constitutional
under the Equal Protection Clause of the Fourteenth Amendment as long
as they satisfy ``rational basis scrutiny,'' i.e., as long as those
laws rationally serve a legitimate goal. While Romer v. Evans (asked
about in the previous question) is a modern-day example of a
legislative classification that the Supreme Court found failed rational
basis, the test is very deferential.
Question 8. Is a state program that gives parents a set sum of
money to be used by the parent to pay for tuition at any school they
choose, public, private, religious or non-sectarian, constitutional?
Answer 8. It is likely that the Supreme Court will be addressing
this question soon, and its decision will determine whether such a
program is a violation of the Establishment Clause of the First
Amendment. If I had to consider such a question, I would, of course,
extend to any statute(s) setting up such a program the presumption of
constitutionality and look to Lemon v. Kurtzman, 403 U.S. 602 (1971)
and subsequent Supreme Court and Eighth Circuit precedent for guidance.
Question 9. Please define judicial activism. Is Lochner v. New
York, 198 U.S. 45 (1905) an example of judicial activism? Please
identify three Supreme Court opinions that you believe are examples of
judicial activism (not including Lochner if your answer to the prior
question was yes). Is Roe v. Wade, 410 U.S. 113 (1973) an example of
judicial activism.
Answer 9. When the term ``judicial activism'' arises, it usually
refers to a belief that judges have engaged in setting imposing their
personal views rather than staying within the boundaries of their
authority set by the Constitution and Acts of Congress. Over my career
as a practicing attorney, State of Iowa Attorney General, and Director
of the Justice Department's Violence Against Women Office, I have
always considered Supreme Court decisions for their content and the law
they handed down, not whether it was ``activist.'' As one who hopes to
be a federal judge, I do not think it is appropriate for me to attach
labels to certain Supreme Court cases. If I am fortunate enough to be
confirmed, I will be duty-bound to follow those Supreme Court
precedents, irrespective of any opinions I may have about them.
Question 10. Do you believe that the view of the death penalty
taken by Justices Brennan, Marshall and Blackmun--that it is
unconstitutional despite clear constitutional text sanctioning it--is a
permissible view for a federal judge to hold?
Answer 10. The Constitution clearly references the death penalty,
and the Supreme Court has held unambiguously that it is constitutional
for states to impose a death penalty. Again, I do not feel it is
appropriate for me to critique members of the Supreme Court; I would
follow Supreme Court precedent and apply the law fairly and equitably.
____
Responses of Bonnie J. Campbell's to Questions From Senator Smith
Question 1. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If a nominee for any federal
judgeship refuses to answer questions about a Constitutional issue,
should that individual be confirmed?
Answer 1. Since it is the duty of federal judges to always follow
the law, as well as to avoid the appearance of pre-judging issues which
might come before them, I understand a nominee's general reluctance to
offer more than a discussion of their understanding of the Supreme
Court's holdings, if any, with respect to any particular issue. Thus, a
nominee's declination to go beyond that point should not, I
respectfully submit, prevent that nominee's confirmation.
Question 2. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If you were a member of the United
States Senate, would you agree that it is difficult to advise and
consent to a nominee when a candidate refuses to answer questions on
Constitutional issues.
Answer 2. If I were a member of the Senate, I think I would attempt
to ascertain the character and ability of the nominee in ways that did
not cause concerns about prejudging of issues.
Question 3. What is the purpose of the United States Senate in
holding hearings on nominees for the federal bench?
Answer 3. My understanding is that the purpose of the United States
Senate in holding hearings on nominees for the federal bench is to have
the opportunity to gain a clearer understanding of the character and
professional competence of the nominee.
Question 4. Is it possible for a Senator to advise and consent to a
nominee if the nominee simply refers to precedent without explaining
his or her legal analysis?
Answer 4. I can say only that I am glad to share my understanding
of the Court's legal analysis with respect to cases which have been
decided, and I will willingly discuss the analytical process I will
employ in considering cases or controversies which may come before me
if I am confirmed.
Question 5. How can I as a Senator advise and consent to a nominee
without answers to Constitutional questions?
Answer 5. I have indicated that I am glad to discuss Constitutional
questions with members of the Senate, as long as the questions do not
put me in the position of appearing to pre-judge an issue which might
at some point in the future come before me.
Question 6. What questions are legitimate to ask a candidate
without the candidate prejudicing himself or herself?
Answer 6. I believe that any questions regarding the nominee's
understanding of the law and questions about his or her professional
experience and background are appropriate.
Question 7. Are there any questions that you feel are off limits
for a Senator to ask?
Answer 7. No. I believe a Senator can ask any question he or she
wishes to ask. However, the nominee, wearing the hat of a judge, may
not be able to answer every question in light of the obligation to
appear, and be, impartial and fair. The onus is on the nominee to
respond in an appropriate fashion, not on the Senator to refrain from
asking the question.
Question 8. If a U.S. District Court Judge or U.S. Court of Appeals
Judge concludes that a Supreme Court precedent is flatly contrary to
the Constitution, are there any circumstances under which the Judge may
refuse to apply that precedent to the case before him or her?
Answer 8. No. The Judge must apply Supreme Court precedent
irrespective of his or her view of the matter.
Question 9. If you were a Supreme Court Justice in 1856, what would
you have held in Dred Scott v. Sandford, 60 U.S. (19How.) 393?
Answer 9. It is impossible to know how I would have ruled or voted
in Dred Scott v. Sandford had I been a member of the Supreme Court in
1856. I cannot put myself back in that time, and I have not had the
benefit of the record, briefs and arguments, and consultations with
other members of the Court.
Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1856), the court apparently held, as you well know there were eight
separate opinions in the case, that black slaves were not citizens of
the United States? How should that precedent be treated by the courts
today?
Answer 10. Since the Dred Scott decision was reversed by the
ratification of the Thirteenth and Fourteenth Amendments, it is no
longer controlling law.
Question 11. If you were a judge in 1857, would you have been bound
by your Oath and would you have been mandated to follow the binding
precedent of Dred Scott v. Sandford, 60 U.S. (19How.) 393 (1856)?
Answer 11. Yes. If I were a judge in 1857, I would have been bound
to follow the binding precedent of Dred Scott v. Sandford.
Question 12. If you were a Supreme Court Justice in 1896, what
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
Answer 12. It is impossible to know how I would have ruled or voted
in Plessy v. Ferguson if I had been a member of the Supreme Court in
1896. I cannot put myself in that time, and I have not had the benefit
of the record, briefs and arguments, and the consultation with other
members of the Court.
Question 13. In Plessy v. Ferguson, 169 U.S. 539 (1896), a majority
of the court held as not a violation of the Fourteenth Amendment to the
Constitution a Louisiana statute which provided that all railway
companies provide ``equal but separate accommodations'' for black and
white passengers, imposing criminal penalties for violations by railway
officials. How should that precedent be treated by the Courts?
Answer 13. Since Plessy v. Ferguson was overturned by the Supreme
Court in Brown v. Board of Education, Brown is controlling law today.
Question 14. If you were a Supreme Court Judge in 1954, what would
you have held in Brown v. Board of Education, 347 U.S. 483 (1954)?
Answer 14. It is impossible to know how I would have ruled or voted
in Brown v. Board of Education if I had been a member of the Supreme
Court when the case was decided. I cannot put myself in that time, and
I have not had the benefit of the record, briefs and arguments, and the
consultation with the other members of the Court.
Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954),
the court held that the segregation of children in public schools
solely on the basis of race, even though the physical facilities and
other tangible factors may be equal, deprive the children of the
minority group of equal educational opportunities contrary to the
protections contained within the Fourteenth Amendment to the
Constitution. How should that precedent be treated by the Courts?
Answer 15. This case is controlling precedent today.
Question 16. If you were a Supreme Court Justice in 1975, what
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
Answer 16. It is impossible to know how I would have ruled or voted
in Roe v. Wade, had I been a member of the Supreme Court at that time.
I cannot put myself in that time, and I have not had the benefit of the
record, briefs and arguments, and the consultation with other members
of the Court.
Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held
that a Texas statute which proscribed an abortion except when necessary
to save the life of the mother was a violation of the due process
clause of the Fourteenth Amendment as an unjustified deprivation of
liberty. Do you agree with the legal reasoning of the holding or of the
Justice Rehnquist dissent in that case?
Answer 17. Roe v. Wade, as modified by Planned parenthood v. Casey,
is controlling precedent today. I do not feel it would be appropriate
for me to critique the legal reasoning of the holding in the case. It
is, however, my duty to follow Supreme Court precedent.
Question 18. We understand the Supreme Court precedent, but what is
your personal view on the issue of abortion?
Answer 18. Since I am obligated to follow Supreme Court precedent
in all cases, I do not feel that is appropriate for me to say more than
that I have no opinions which would prevent me from following Supreme
Court precedent.
Question 19. We understand the Supreme Court precedent, but what is
your personal view on the issue of the death penalty?
Answer 19. Since I am obligated to follow Supreme Court precedent
in all cases, I do not feel that is appropriate for me to say more than
that I have no personal views on the death penalty which would prevent
me from following Supreme Court precedent.
Question 20. We understand the Supreme Court precedent, but what is
your personal view on the issue of the Second Amendment to the
Constitution?
Answer 20. Since I am obligated to follow Supreme Court precedent
in all cases, I do not feel that it is appropriate for me to say more
than that I have no opinions which would prevent me from following
Supreme Court precedent.
Question 21. In Planned Parenthood v. Casey, (505 U.S. 833 (1993))
the Supreme Court held that the government interest in preserving life
must be balanced against a mother's right of privacy and access to
abortion which may not be unduly burdened. Do you believe the ``right
to privacy'' includes the right to take away the life of an unborn
child?
Answer 21. Roe v. Wade, as modified by Planned Parenthood v. Casey
is controlling law with respect to this issue today, and I would be
obligated to follow the Supreme Court precedent.
Question 22. Again, I understand the state of the law on the
Supreme Court's interpretation on the issue of abortion, but I am
interested in your personal beliefs on the issue. Do you personally
believe that an unborn child is a human being?
Answer 22. Roe v. Wade, as modified by Planned Parenthood v. Casey
is controlling law with respect to this issue today, and I would be
obligated to follow the Supreme Court precedent.
Question 23. Do you believe that the death penalty is
Constitutional?
Answer 23. Yes. The Supreme Court has held that states may enact a
death penalty, and I would follow the Supreme Court precedent.
Question 24. If you were a Supreme Court Justice, under what
circumstances would you vote to overrule a precedent of the Court?
Answer 24. If I were a Supreme Court Justice, I would follow the
Court's own guidance for overruling a precedent of the Court. The
Supreme Court offered this discussion in Planned Parenthood v. Casey
and in Agostini v. Felton. The Court noted that the factors for the
Supreme Court to consider when asked to overrule a precedent include:
whether the rule of law has defied practical workability; whether the
rule is subject to a kind of reliance that would cause special hardship
if it were overruled; whether related principles of law have so
developed as to have left the rule a remnant of an abandoned doctrine;
and whether facts have so changed as to have stripped the old rule of
significant application.
Question 25. Do you consider legislative intent and the testimony
of elected officials in debates leading up to passage of an act? And
what weight do you give legislative intent?
Answer 25. I think a review of the legislative history of a statute
might be informative, but I would consider it with caution and only if
the plain language of the statute were ambiguous. The testimony of
elected officials in debates tells only the views of those particular
officials, whereas committee reports may be more representative of the
intent of the legislative body as a whole.
Question 26. The Supreme Court recently ruled that part of the
Violence Against Women Act violated the Commerce Clause of the
Constitution. Do you believe that the ruling was a correct
interpretation of the Constitution?
Answer 26. In my role as Director of the Violence Against Women
Office, I stated publicly that I hoped the Supreme Court would uphold
the civil rights remedy in the Violence Against Women Act. However, I
understand that judges must follow Supreme Court precedent and if I am
fortunate enough to be confirmed, I would follow that precedent and all
applicable precedent of the Supreme Court.
Question 27. Does the prior mentioned ruling change any of your
current job responsibilities as Director of the Violence Against Women
Office of the U.S. Justice Department?
Answer 27. No. The provision which was invalidated was a private
right of action, and the Department of Justice had no enforcement
authority. Consequently, the Court's ruling did not change any of my
job responsibilities.
Question 28. As a member of Emily's List, what lobbying activities
of the organization have you been active in?
Answer 28. I have not been involved in any lobbying activities as a
member of Emily's List. I am a member by virtue of making a financial
contribution.
Question 29. You spoke in February of 1992 at a ``Hate Crimes
Seminar'' in Iowa. What was the substance of your remarks?
Answer 29. I believe the context of the seminar was that the Iowa
Legislature was considering various hate crimes legislation, and the
seminar attendees were interested in being briefed on possible
legislative action. I included a copy of my written comments for that
presentation with the documents I provided to the Senate Judiciary
Committee when I was nominated. Beyond the comments which I have
provided, I have no memory of my remarks. A review of the comments
suggests that they were introductory in tone rather than substantive.
If I am fortunate enough to be confirmed, I would follow any applicable
precedent of the Supreme Court regarding hate crimes.
______
Responses of Bonnie J. Campbell's to Questions From Senator DeWine
Question 1. In September, 1999, in Stenberg v. Carhart, a three-
judge panel of the Eighth Circuit struck down Nebraska's ban on most
partial-birth abortions. However, the following month, the entire
Seventh Circuit adopted a different analysis and upheld very similar
bans enacted by Illinois and Wisconsin. In your view, which circuit
applied the correct analysis to state bans on partial-birth abortion?
Answer 1. In Stenberg v. Carhart, 192 F.3rd 1142, the Eighth
Circuit based its ruling striking Nebraska's ban on certain late-term
abortions on Planned Parenthood v. Casey. The Court held that the ban
imposed an undue burden on a woman's right to an abortion because,
based on the facts found by the district court, it would prohibit the
most common procedure for second trimester abortions.
The Seventh Circuit cases involve somewhat different sets of facts
but also relied on an analysis based on Planned Parenthood v. Casey.
The Seventh Circuit found that the bans in question did not affect the
same procedure at issue in Carhart. They found that prohibiting the
procedure that was affected by the ban did not unduly burden a woman's
right to an abortion. Both the Seventh and Eighth Circuits applied
Casey to different sets of facts, resulting in differing conclusions.
The Supreme Court granted certiorari in the case of Stenberg v.
Carhart to further clarify the application of Casey in this context,
and its decision will determine the correct analysis to state bans on
partial-birth abortion. If I am fortunate enough to be confirmed, I
will, of course, follow the Supreme Court's precedent on this and all
other matters.
Question 2. In 1992, as Iowa's attorney general, you joined in a
friend-of-the-court brief to the Supreme Court in the case of Planned
Parenthood v. Casey, urging the Court to reaffirm Roe v. Wade, but also
said that it would permit state regulations that do not place an
``undue burden'' on access to abortion. Do you believe that the Court's
holding was consistent with the position that you urged in the brief?
Answer 2. Yes, I do believe that the Court's holding in Planned
Parenthood v. Casey was consistent with the position urged in the
friend-of-the-court brief I filed as Attorney General of Iowa. The
central thrust of the brief, which was one of many filed by states,
including New Jersey, North Carolina, Utah, Illinois, and Texas, was an
argument in favor of stare decisis, i.e., respecting the precedent in
Roe v. Wade, which the Court clearly did in its opinion. Justice
O'Connor, writing for the majority, emphatically reaffirmed the Court's
holding in Roe when she wrote: ``A decision to overrule Roe's essential
holding . . . would address error, if error there was, at the cost of
both profound and unnecessary damage to the Court's legitimacy, and to
the Nation's commitment to the rule of law. It is therefore imperative
to adhere to the essence of Roe's original decision and we do so
today.'' Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833, 863 (1992). However, irrespective of any positions I took as
Iowa, Attorney General, or at any other time, if I am fortunate enough
to be confirmed to the Eighth Circuit of Appeals, I will always fulfill
my obligation as a judge and follow binding precedent of the Supreme
Court.
______
Responses of Jay A. Garcia-Gregory to Questions from Senator Thurmond
Question 1. We frequently hear the argument that the courts act in
response to various social problems because the legislature has failed
to act on important issues. What is your view of courts acting in this
manner?
Answer 1. Under the constitutional system of separation of powers,
it is up to the legislature to act or not to act in response to social
problems, not the courts. Courts should not act in response to social
problems but must only adjudicate actual cases or controversies under
Article III of the Constitution.
Question 2. Do you have any personal objections to the death
penalty that would cause you to be reluctant to impose or uphold a
death sentence?
Answer 2. No, I have no personal objections that would cause me to
be reluctant to impose or uphold a death sentence.
Question 3. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a Federal judge?
Answer 3. Mandatory minimum sentences have been held to be
constitutional and I would have no reluctance to impose or uphold them
as a Federal judge.
Question 4. As you are well aware, the sentencing of criminal
defendants in Federal court is conducted under the Federal Sentencing
Guidelines. Some argue that the Guidelines do not provide enough
flexibility for the sentencing judge, while others say the Guidelines
provided needed consistency. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 4. The Federal Sentencing Guidelines--which balance
consistency and flexibility in sentencing--have been found to be
constitutional, and I would apply them in the sentencing of criminal
defendants consistent with Supreme Court and Circuit precedent.
______
Responses of Jay A. Garcia-Gregory to Questions from Senator Hatch
Question 1. Are you aware of the Supreme Court's decision in Bowers
v. Hardwick, 478 U.S. 186 (1986)? Please explain to the Committee your
understanding of that decision, and its holding regarding the
Constitution's Due Process Clause.
Answer 1. Yes, I am aware of Bowers v. Hardwick, 478 U.S. 186
(1986). It is my understanding that in Bowers, the Supreme Court held
that the Constitution does not confer a fundamental right upon
homosexuals to engage in consensual sodomy. In that case, the Court
rejected a challenge under the Fourteenth Amendment to Georgia's
exercise of police powers in enacting that State's criminal sodomy
statute, which specified the elements of the offense. The Court also
noted that federal courts should not expand the reach of the Due
Process clauses of the Fifth and Fourteenth Amendments to such cases.
If I were so fortunate as to be confirmed as a Federal judge, I would
fully comply with the Supreme Court holding and would have no
reluctance to follow that precedent.
______
Responses of Jay A. Garcia-Gregory to Questions From Senator Ashcroft
Question 1. In your view, to what extent, if any, do the rights
protected by the Constitution grow or shrink with changing historical
circumstances?
Answer 1. The rights protected by the Constitution are found in the
Constitution and its Amendments as interpreted by the Supreme Court of
the United States. A Federal District Court judge is bound by the
Constitutional text as interpreted by the Supreme Court, regardless of
any changing circumstances.
Question 2. If a particular judge or court has a high rate of
reversal on appeal, or by the Supreme Court, is that a problem? If it
is, what can and should be done to remedy that problem?
Answer 2. If a judge or court has a high rate of reversal on
appeal, that would be a problem. Such a situation could be remedied
through remand instructions and directives by the reviewing Court and
through the work of the lower courts to thoroughly read any reversals
and closely follow the rulings of the higher courts. If I were so
fortunate as to be confirmed, I would examine any reversal and review
my own opinion and other orders to determine the problem and rectify
it.
Question 3. Is ``substantive due process'' a legitimate
constitutional doctrine?
Answer 3. The concept of ``substantive due process'' is legitimate
only insofar as Supreme Court precedent may have recognized it or
allowed it to be. For example, in Washington v. Glucksberg, 521 U.S.
702 (1997) Chief Justice Rehnquist, writing for the majority, concluded
that ``substantive due process'' was a viable constitutional doctrine,
but only within very narrow limits so as to avoid impeding the
democratic process. In Glucksberg, the Supreme Court upheld a State ban
on assisted suicide and found that the liberty interest protected by
the due process clause did not render such a ban unconstitutional. If I
were so fortunate as to be confirmed, I would be bound by that
precedent and all precedents of the Supreme Court.
Question 4. Is it appropriate for federal judges to recognize new
``substantive due process'' rights? If yes, what should the guiding
principles be?
Answer 4. No, it is not appropriate for Federal judges to recognize
new ``substantive due process'' rights, and Federal District Court
judges are obligated to follow precedent in this area and all areas of
the law.
Question 5. What is your understanding of the holding in United
States v. Lopez, 514 U.S. 549 (1995)? What test would you apply to
determine if a statute exceeded the power of Congress to enact under
the Commerce Clause?
Answer 5. In United States v. Lopez, 514 U.S. 549 (1995), the
Supreme Court held that the prohibition found in the Gun-Free School
Zones Act of 1990 that forbade any individual from knowingly possessing
a firearm in a school zone exceeded Congress' authority under the
Commerce Clause. The Court found that the possession of a gun in a
local school zone is not an economic activity that might through
repetition elsewhere have a substantial effect on interstate commerce.
If I were so fortunate as to be confirmed, I would be bound to apply
this test where applicable after according the statute a presumption of
constitutionality.
Question 6. Do you think that there is tension between the Supreme
Court's holdings in Romer v. Evans, S17 U.S. 620 (1996) and Bowers v.
Hardwick, 478 U.S. 186 (1986)? If there is, how would you reconcile
that tension? If there is not, how are they reconcilable?
Answer 6. I do not think there is tension between the Supreme Court
holdings in these cases Romer was based on the Equal Protection clause
while Bowers was based on the Due Process clause. Bowers held that
individuals have no constitutional rights to engage in homosexual
activity under the Due Process clause, and thus, the State of Georgia's
exercise of its police power to make such conduct criminal is clearly
lawful. Romer held that a Colorado state constitutional amendment,
adopted in a statewide referendum, that effectively repealed state and
local provisions barring discrimination on the basis of homosexual,
lesbian, or bisexual orientation, failed rational basis review and
violated the Constitution. Bowers and Romer are reconcilable because
they constitute precedent in different factual situations and legal
postures, and in my view both still call for deference to the
legislative process.
Question 7. Is there a legislative classification that would fail
rational basis review?
Answer 7. An invidious racial classification would have no rational
relation to a legitimate end. However, such a classification would be
subject to strict scrutiny review, not the rational basis test.
Question 8. Is a state program that gives parents a set sum of
money to be used by the parent to pay for tuition at any school they
choose, public, private, religious or non-sectarian, constitutional?
Answer 8. If such a question were presented in an actual case or
controversy where the issue was squarely raised, I would follow the
Supreme Court's holding in Lemon v. Kurtzman, 403 U.S. 602 (1971), and
subsequent precedent.
Question 9. Please define judicial activism. Is Lochner v. New
York, 198 U.S. 45 (1905) an example of judicial activism? Please
identify three Supreme Court opinions that you believe are examples of
judicial activism (not including Lochner if your answer to the prior
question was yes). Is Roe v. Wade, 410 U.S. 113 (1973) an example of
judicial activism?
Answer 9. I would think that Federal district court judges
``legislating'' or substituting their own personal views for those of
appellate courts and binding precedent would be examples of judicial
activism.
I do not read Supreme Court opinions to ascertain whether the Court
has been ``activist'' or not. I only read them to ascertain their
holding and whether that holding will bear on any particular issue. I
read Lochner as having decided a particular issue at a particular time
and under particular circumstances where the Supreme Court's view of
liberty of contract as a constitutional guarantee prevailed over
certain State social welfare legislation. That case is no longer
precedent. I cannot think of three cases I would characterize as
``judicial activism,'' and if I were so fortunate as to be confirmed, I
would be obligated to follow all precedents of the higher courts,
including Roe v. Wade, regardless of whether or not I thought the
Court had erred in its analysis. I would also be bound to decide only
actual cases or controversies based on the facts established and on
appropriate legal sources, such as the Constitution, statutes, and
precedent.
Question 10. Do you believe that the view of the death penalty
taken by Justices Brennan, Marshall, and Blackmun--that it is
unconstitutional, despite clear constitutional text sanctioning it--is
a permissible view for a federal judge to hold?
Answer 10. No, a Federal judge is bound by the Supreme Court
precedent in Gregg v. Georgia, 428 U.S. 193 (1976), which declared the
death penalty to be constitutional.
______
Responses of Jay A. Garcia-Gregory to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect, even if you personally disagree with such precedents?
Answer 1. Yes, I am committed to following the precedent of higher
courts faithfully and giving them full force and effect even if I were
to personally disagree with such precedents.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores\1\ where the Court struck down the Religious
Freedom Restoration Act.
---------------------------------------------------------------------------
\1\ 521 U.S. 507 (1997).
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Answer 2. I would rule in accordance with Supreme Court or Court of
Appeals precedent regardless of whether I believed a higher court had
seriously erred. I would apply the holding of the case, not my own
personal judgment on the merits. If I were so fortunate as to be
confirmed, I would apply the Supreme Court precedent in City of Boerne
v. Flores, 521 U.S. 507 (1997).
Question 3. Regardless of your personal feelings on these issues,
are you committed to following precedent of higher courts on equal
protection issues?
Answer 3. Yes, I am committed to following precedent of higher
courts on equal protection issues regardless of my personal feelings.
Question 4. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 4. No, I have no legal or moral beliefs which would prevent
me from imposing or upholding a death sentence in any criminal case
that might come before me as a federal judge.
Question 5. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously.
Answer 5. Yes, I believe that delays of 10, 15 or 20 years between
conviction of a capital offender and execution are too long.
Yes, I believe that once Congress or a State legislature has made
the policy decision that capital punishment is appropriate, federal
courts should focus their resources on resolving capital cases as all
cases, fairly and expeditiously.
Question 6. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of each of these authorities is
consistent with the exercise of the Article III judicial power.
Answer 6. After determining whether the case or controversy falls
within the limited jurisdiction of the federal courts, a federal judge
must ascertain whether he could decide a statutory issue by relying on
the plain language of the statute and available court precedent
interpreting the statute. If there is any ambiguity, he or she would
look to legislative intent to be ascertained on the basis of committee
reports (but look with caution to legislative debates which may reflect
the views of only a few Senators). A judge must try to decide the issue
in accordance with principles of statutory construction and avoid
reaching a constitutional question, if possible. Statutes are entitled
to a presumption of constitutionally. Next, the judge must look to
other available precedent or similar cases in deciding the question.
With respect to a constitutional provision, the judge must respect the
plain language of the constitutional provision and look to available
precedent and constitutional debates in interpreting such a provision.
Reliance on such sources of law limits the exercise of judicial power
and is crucial to keeping intact the separation of powers in the
Constitution.
Question 7. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and the
original intent of the Framers of the Constitution; (2) discernment of
the ``community's interpretation'' of constitutional text, see William
J. Brennan, The Constitution of the United States: Contemporary
Ratification. Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 7. In analyzing any claim of a constitutional right, it
would be legitimate to use (1) interpretation of the plain meaning of a
text and original intent to the framers of the Constitution and (3)
ratification of an amendment under Article V of the Constitution. Use
of (2), Justice Brennan's ``community interpretation'' approach, poses
the danger of a court going beyond its jurisdiction to decide actual
cases or controversies and invading an area reserved to the legislative
branch. As the Supreme Court cautioned in Bowers v. Hardwick, 478 U.S.
186 (1986).
Nor are we inclined to take a more expansive view of our
authority to discover new fundamental rights imbedded in the
Due Process Clause. The Court is most vulnerable and comes
nearer to illegitimacy when it deals with judge-made
constitutional law having little or no cognizable roots in the
language or design of the Constitution. Id. at 194.
If I were so fortunate as to be confirmed, I would follow Supreme Court
precedent in this regard and on all issues.
Question 8. How would you, if confirmed, analyze a challenge to the
constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 8. If confirmed, I would analyze a challenge to the
constitutionally of a statute in a case not of first impression by
according the statute of a presumption of constitutionality, strictly
adhering to precedent, and ascertaining whether the statute could be
saved through interpretation so as to avoid deciding a constitutional
question unnecessarily. In a case of first impression, I would also
accord the statute the presumption of constitutionality, would seek to
interpret it so as to not have to decide a constitutional question
unnecessarily, and look to available analogous precedent. Of course,
the requisite threshold standing and case of controversy jurisdictional
issues would have to be analyzed initially.
Question 9. In your view, what are the source of law and methods of
interpretation used in reaching the Court's judgment in the following
cases? How does the use of these sources of law impact the scope of the
judicial power and the federal government's power under Article III?
A. Griswold v. Connecticut, 381 U.S. 479 (1965).
Answer 9A. In this case, the Court derived the ``right to privacy''
from certain ``penumbras'' in the Bill of Rights. This method of
interpretation did not rely on the plain language of the Constitution
but looked beyond the language to invalidate a State law regulating the
use of contraceptives by married couples.
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 9B. In this case, the Supreme Court found that ``sovereign
immunity derives not from the Eleventh Amendment text but from the
structure of the original Constitution itself.'' 119 S.Ct. at 2254. The
Court exercised judicial power under Article III to limit congressional
power affording a remedy to public employees in State courts unless the
State consents to suit.
Question 10. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress's
power and on the federal government's power compared with the power of
state governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
Answer 10A. In this case, the Court upheld a federal law that
prevented individual farmers from growing more than a pre-determined
amount of wheat because overproduction by individual farmers, in the
aggregate, could affect the interstate wheat market. The clause refers
to ``commerce among the several states'' but the Court followed prior
precedent in interpreting the clause to reach purely intrastate
economic activity that substantially affected interstate commerce.
B. United States v. Lopez, 514 U.S. 549 (1995).
Answer 10B. In striking down the Gun-Free School Zones Act, which
made it a crime to knowingly carry a firearm within a ``school zone,''
the Court adhered to a more narrow reading of the constitutional text
than in Wickard. The Court examined the statute and could not find a
sufficient effect on interstate commerce. It found that the Act had no
jurisdictional requirement that the firearm at issue would have
traveled in interstate commerce and the Congress had made scant
findings about the interstate effects of the local criminal activity at
issue.
A federal judge would have to apply these precedents in applicable
cases.
Question 11. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
The Constitution provides for a federal government of limited
delegated powers and creates a system of dual sovereignty for the
federal government and the States. The Supreme Court has noted that in
enacting legislation that affects the States, Congress cannot require
State executive officers to carry out duties imposed by federal law.
These limits do not, however, preclude Congress from obtaining State
cooperation through funding incentives or through federal preemption.
The division of power between the State and federal governments and the
separation of powers among the branches of government is intended to
protect the liberty of the individual from the concentration of power.
The powers of a federal judge are limited by Article III of the
Constitution to actual cases or controversies arising under the
Constitution and federal statutes and treaties. A Federal judge must
scrupulously adhere to jurisdictional requirements so he will at all
times respect the balance of power established in the Constitution
among the coordinate branches of Government and between the National
and State Governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
Answer 11A. In this case, the Court placed limits on congressional
power under the Commerce Clause in the area of non-economic activity
without a nexus to interstate commerce so as not to displace
traditional state police power.
B. Printz v. United States, 521 U.S. 898 (1997).
Answer 11B. In this case, the Court addressed the interim
provisions of the Brady Handgun Violence Prevention Act that required
state law enforcement officers to run background checks on prospective
gun buyers and perform other related duties. The Court held that
Congress had no greater power under the Tenth Amendment to commandeer a
State's executive officers to carry out federal law than it did to
commandeer State legislatures to enact legislation to effectuate
federal law. New York v. United States, 505 U.S. 144 (1992).
C. Alden v. Maine, 119 S. Ct, 2240 (1999).
Answer 11C. In this case, the Court construed the Eleventh
Amendment to bar lawsuits against States in State court and held that
``sovereign immunity derives not from the Eleventh Amendment text but
from the structure of the original Constitution itself.'' Id. at 2254.
The Court recognized that the National Government is one of delegated
powers and that the states retained their original sovereign immunity
except to the extent they may have been surrendered or expressly waived
it.
D. Baker v. Carr, 369 U.S. 186 (1962).
Answer 11D. The Court decided that a claim that the legislative
apportionment plan of a State resulted in the debasement of the votes
of plaintiffs stated a cognizable and justiciable claim under the Equal
Protection Clause of the Fourteenth Amendment. In this case, the Court
held that State apportionment did not present a non-justiciable
political question and thus allowed a federal judicial forum for such
claims.
E. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 11E. The Court found that a State reapportionment scheme
subject to Section 5 of the Voting Rights Act of 1965 was so irrational
on its face that it could be understood only as an effort to segregate
voters into separate districts on the basis of race, and that such a
``racial gerrymandering'' was subject to a strict scrutiny standard.
Question 12. Do you believe that a federal district court has the
institutional expertise to set rules for and oversee the administration
of prisons, schools, or state agencies?
Answer 12. No, I do not believe that a federal district court has
the institutional expertise to set rules for and oversee the
administration of prisons, schools, or state agencies.
Question 13. In ruling on the constitutionality of a statute, what
weight should a court give to the fact that the challenged statute
existed before and after the ratification of the constitutional
provision at issue? Assume the court faces this issue as a matter of
first impression.
Answer 13. In ruling on the constitutionality of a statute, the
court should first determine whether it is necessary to reach the
constitutional claim or whether the case could be disposed of on
statutory grounds. If the constitutional question has to be decided,
the court should be careful to ascertain the relationship between the
constitutional provision ratified and the pre-existing statute. The
court must follow the precedents of the Supreme court on this issue, if
any. If there are no precedents, the court would be obligated to
presume the statute to be constitutional and look to the plain language
of the new constitutional provision. If there is ambiguity, the court
would look to the intent of the drafters and to the history of the
amendment. The court would also look to any analogous precedent in
attempting to reconcile the statute with the constitutional provision.
____
Responses of Jay A. Garcia-Grergory to Questions From Senator Smith
Question 1. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If a nominee for any federal
judgeship refuses to answer questions about a Constitutional issue,
should that individual be confirmed?
Answer. 1. The confirmation of a judicial nominee is an exclusive
constitutional prerogative of the Senate. A nominee should try to
answer all questions posed by a Senator to the best of his ability. A
nominee may be constrained in answering some questions in order not to
appear to have prejudged an issue or rendered an advisory opinion.
Question 2. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If you were a member of the United
States Senate, would you agree that it is difficult to advise and
consent to a nominee when a candidate refuses to answer questions on
Constitutional issues?
Answer. 2. It is up to the Senate to evaluate a candidate's
qualifications for confirmation. I would agree that it may be difficult
to advise and consent to a nominee when a candidate refuses to answer
questions on constitutional issues. A nominee must take care not to
appear to prejudge an issue or render an advisory opinion.
Question 3. What is the purpose of the United States Senate in
holding hearings on nominees for the federal bench?
Answer. 3. I believe that the purpose of the United States Senate
in holding hearings on nominees for the federal bench is to give
Senators an opportunity to consider the nominees and their
qualifications so that the Senate can discharge its constitutional duty
and evaluate the nominee's character, fitness and qualifications for
the federal bench.
Question 4. Is it possible for a Senator to advise and consent to a
nominee if the nominee simply refers to precedent without explaining
his or her legal analysis?
Answer. 4. It is possible for a Senator to advise and consent to a
nominee who refers to precedent without explaining his or her legal
analysis. In expressing adherence to precedent, a judicial nominee is
expressing his commitment to following the analysis used by the Court
in that case.
Question 5. How can I as a Senator advise and consent to a nominee
without answers to Constitutional questions?
Answer. 5. It is up to the Honorable Senator to determine whether
to advise and consent to a nominee should the nominee not give
pertinent answers to constitutional questions. In making this
determination, a Senator may have information about a nominee's
qualifications for a federal judgeship such as his legal experience,
his legal ability, his commitment to following precedent, and his
ability to be fair, impartial, and respectful among other
characteristics that the Senator considers important.
Question 6. What questions are legitimate to ask a candidate
without the candidate prejudicing himself or herself?
Answer. 6. Questions regarding the candidate's background and
qualifications may be answered without the candidate prejudicing
himself or herself. Other questions concerning his general knowledge of
the law, his method of constitutional or statutory interpretation in an
abstract sense, or understanding of applicable precedent in general,
are unrelated to a particular case or real or hypothetical
circumstances, and may be answered without a candidate prejudicing
himself or herself. These examples, of course, are not intended to be
exhaustive.
Question 7. Are there any questions that you feel are off limits
for a Senator to ask?
Answer. 7. No, there are no questions that are off limits for a
Senator to ask. It is up to the Senate to set the parameters of its
investigation. There are, however, some questions that a nominee cannot
answer without prejudicing himself or herself.
Question 8. If a U.S. District Court judge or U.S. Court of Appeals
judge concludes that a Supreme Court precedent is flatly contrary to
the Constitution, are there any circumstances under which the judge may
refuse to apply that precedent to the case before her?
Answer. 8. A U.S. District Court judge or U.S. Court of Appeals
judge is bound by Supreme Court precedent regardless of any personal
views about the Supreme Court precedent.
Question 9. If your were a Supreme Court Justice in 1856, what
would you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
Answer 9. It would be very difficult to say what I would have held
if I were a Supreme Court Justice in Dred Scott v. Sandford, without
the available precedent, information, briefs, oral argument and
consultation with my colleagues on the Court.
Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1856), the court apparently held, as you well know there were eight
separate opinions in the case, that black slaves were not citizens of
the United States. How should the precedent be treated by the courts
today?
Answer 10. Dred Scott is no longer a precedent, inasmuch as it was
overruled by the Thirteenth and Fourteenth Amendments to the
Constitution. A court today would not be able to treat it as precedent.
Question 11. If you were a judge in 1857, would you have been bound
by your Oath and would you have been mandated to follow the binding
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
Answer 11. Dred Scott being precedent at that time, I would have
been bound by it as well as by my oath.
Question 12. If you were a Supreme Court Justice in 1896, what
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
Answer 12. It would be very difficult to say what I would have held
if I were a Supreme Court Justice in Plessy v. Ferguson, without the
available precedent, information, briefs, oral argument and
consultation with my colleagues on the Court.
Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority
of the court held as not a violation of the Fourteenth Amendment to the
Constitution a Louisiana statute which provided that all railway
companies provide ``equal but separate accommodations'' for black and
white passengers, imposing criminal penalties for violations by railway
officials. How should that precedent be treated by the Courts?
Answer 13. Plessy is no longer a precedent. It should not be
treated by the courts as precedent, having been overruled by Brown v.
Board of Education, 347 U.S. 483 (1954).
Question 14. If you were a Supreme Court Justice in 1954, what
would you have held in Brown v. Board of Education, 347 U.S. 483
(1954)?
Answer 14. It would be very difficult to say what I would have held
if I were a Supreme Court Justice in Brown v. Board of Education,
without the available precedent, information, briefs, oral argument and
consultation with my colleagues on the Court.
Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954),
the court held that the segregation of children in public schools
solely on the basis of race, even though the physical facilities and
other tangible factors may be equal, deprive the children of the
minority group of equal educational opportunities contrary to the
protections contained within the Fourteenth Amendment to the
Constitution. How should that precedent be treated by the Courts?
Answer 15. Brown must be treated as mandatory precedent by the
Courts.
Question 16. If you were a Supreme Court Justice in 1973, what
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
Answer 16. It would be very difficult to say what I would have held
if I were a Supreme Court Justice in Roe v. Wade, without the available
precedent, information, briefs, oral argument and consultation with my
colleagues on the Court.
Question 17. In Roe v. Wade, 410 U.S. 13 (1973), the court held
that a Texas statute which proscribed an abortion except when necessary
to save the life of the mother was a violation due process clause of
the Fourteenth Amendment as an unjustified deprivation of liberty. Do
you agree with the legal reasoning of the holding or of the Justice
Rehnquist dissent in that case?
Answer 17. In any such matter coming before me, if I were so
fortunate as to be confirmed, I would apply Roe v. Wade, as modified by
Planned Parenthood v. Casey. Whether I agree or disagree with the legal
reasoning of the holding or of the Justice Rehnquist dissent in the
case would have no effect upon the discharge of my judicial function as
a prospective federal judge.
Question 18. We understand the Supreme Court precedent, but what is
your personal view on the issue of abortion?
Answer 18. I have no personal views that would interfer with my
ability to follow precedent on the issue of abortion.
Question 19. We understand the Supreme Court precedent, but what is
your personal view on the issue of death penalty?
Answer 19. I have no personal views that would prevent me from
following the precedent of the Supreme Court on the issue of the death
penalty.
Question 20. We understand the Supreme Court precedent, but what is
your personal view on the issue of the Second Amendment to the
Constitution?
Answer 20. Any personal views I might have on the Second Amendment
to the Constitution would have no place in my judicial decision making.
Question 21. In Planned Parenthood v. Casey (505 U.S. 833 (1992))
the Supreme Court held that the government interest in preserving life
must be balanced against a mother's right of privacy and access to
abortion which may not be unduly burdened. Do you believe the ``right
to privacy'' includes the right to take away the life an unborn child?
Answer 21. I have no personal views that would prevent me from
following applicable precedents of the Supreme Court on this issue.
Question 22. Again, I understand the state of the law on the
Supreme Court's interpretation on the issue of abortion, but I am
interested in your personal beliefs on the issue, do you personally
believe that an unborn child is a human being?
Answer 22. I have no personal views that would prevent me from
following applicable precedents of the Supreme Court on this issue.
Question 23. Do you believe that the death penalty is
Constitutional?
Answer 23. I have no personal views that would prevent me from
following the Supreme Court precedent in this area. If am so fortunate
as to be confirmed, I would follow Supreme Court precedent declaring
the death penalty constitutional.
Question 24. If you were a Supreme Court Justice, under what
circumstances would you vote to overrule a precedent of the Court?
Answer 24. If I were Supreme Court Justice, I would follow the
guidance of Planned Parenthood v. Casey (505 U.S. 833 (1992)) in
deciding whether to overrule precedent of the Court. In Casey the Court
mentioned the following criteria for overruling a precedent: (1)
``whether the rule [announced in the precedent] has proven to be
intolerable simply in defying practical workability; (2) whether the
rule is subject to a kind of reliance that would lend a special
hardship to the consequences of overruling and add inequity to the cost
of repudiation; (3) whether related principles of law have so far
developed as to have left the old rule no more than a remnant of
abandoned doctrine; and (4) whether facts have so changed, or come to
be seen so differently, as to have robbed the old rule of significant
application or justification.'' 505 U.S. at 854-855.
Question 25. Do you consider legislative intent and the testimony
of elected officials in debates leading up to passage on an act? And
what weight do you give legislative intent?
Answer 25. I would consider legislative intent and debates only if
a statute were ambiguous and could not be construed on its plain words.
I would also follow any available cases on point or similar statutes
and/or the legislature's action or inaction after any pertinent
judicial decisions concerning the issues the statute addresses.
Referring to legislative history, I would look to committee reports and
other sources of intent, but I would be wary of the statements of
individual legislators which may not represent all of the views of the
majority that passed the legislation.
______
League of United Latin American Citizens,
Washington, DC, May 22, 2000.
Hon. Patrick Leahy,
Ranking Member, Committee on the Judiciary, U.S. Senate, Washington,
DC.
Dear Senator Leahy: I am writing to ask you to support the
nomination of attorney Jay A. Garcia-Gregory to the United States
District Court for the District of Puerto Rico. The current judicial
vacancy in the District Court of Puerto Rico is over five years old and
has been classified by the Administrative Office of the United States
Courts as an emergency vacancy, so expeditious and swift action is
urgently needed.
Mr. Garcia is a respected and highly qualified lawyer with over 25
years of trial and appellate practice at the Puerto Rico and federal
courts. His vast experience and strong academic credentials, as
evidenced in his resume, makes him the ideal candidate to fill the
judicial vacancy.
Besides his knowledge and practical expertise, attorney Garcia is
also a dependable and enthusiastic member of the Puerto Rico branch of
the Federal Bar Association. He enjoys volunteer work and has been an
active member of the Federal District Court Examination Committee. As a
matter of fact, he has already received the unconditional endorsement
of both, the Hispanic National Bar Association and the Federal Bar
Association.
As the President of the oldest Hispanic civil rights organization
in the United States, I realize the importance of appointing lawyers
who have the judicial temperament, knowledge and expertise to excel in
the federal bench. Without any doubt, Mr. Garcia is one of those few
lawyers and he has our wholehearted support.
Senator, we strongly urge you to nominate Attorney Garcia, since we
are confident that he will prove worthy of our support and yours.
Sincerely,
Rick Dovalina,
LULAC National President.
______
Republican National Hispanic Assembly,
Washington, DC, May 5, 2000.
Senator Orin Hatch,
Washington, DC.
Dear Fellow Republican: As chairman of the only Hispanic
organization officially recognized by the RNC, the Republican National
Hispanic Assembly, I am writing to you in support of the nomination of
Mr. Jay Garcia Gregory-Esq. to the position of District Judge for the
District of Puerto Rico, U.S. Federal Court. Mr. Garcia Gregory is not
only well qualified for the position, but also a very well known
lawyer, respected by all in the legal community in Puerto Rico.
There has been a vacancy in the Puerto Rico District Court for some
time now and Mr. Garcia Gregory's appointment will not only correct the
situation, but he will be the right choice to fill that vacancy. Mr.
Garcia Gregory will go to the bench to do justice, not to rewrite the
law. His values are consistent with our views and those of the
conservative people of the United States of America.
I urge you to consider positively Mr. Garcia Gregory's nomination
and send it to the Senate floor for a final vote as soon as possible.
Thank you for your time and consideration in this most urgent
matter.
Yours truly,
Jose Rivera,
National Chairman.
______
U.S. Senate,
Washington, DC, May 10, 2000.
Dr. Miriam J. Ramirez de Ferrer,
President, Puerto Rico Foundation of Republican Women, San Juan, PR.
Dear Miriam: Thank you for your letter in support of Jay A. Garcia-
Gregory to be a federal district court judge for Puerto Rico. As you
know, his nomination is currently in committee, pending review. A
hearing has not been scheduled. I have passed along your expression of
support to Chairman Orrin Hatch's office. I will follow this nomination
closely.
Do not hesitate to contact me, or Stephen Higgins of my staff if
you have additional comments.
Sincerely,
John Kyl,
U.S. Senator.
I hope all is going well for you, and hope we'll be able to visit
in the near future.
______
Republican National Committee.
San Juan, PR, April 26, 2000.
Hon. Orrin Hatch,
Chairman, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Dear Senator Hatch: It has come to our attention that a nomination
hearing has been tentatively set for this week in the Senate Judiciary
Committee that may include the nomination of Mr. Jay Garcia to the
United States District Court for the District of Puerto Rico. Therefore
on behalf of the Republican leadership of Puerto Rico we wish to add
our strong endorsement and support for Mr. Garcia's nomination. He is a
man of unquestionable integrity and will serve the court with dignity
and honor. He has the broad base support of both Republicans and
Democrats throughout the Island and especially in the legal community.
We are prepared to give supporting documentation and give testimony
as may be required to ensure Mr. Garcia's nomination. Again, we wish to
add our strong endorsement and support for Mr. Gracia's nomination. As
the record indicates, there is an urgent need for an immediate
appointment due to the tremendous back log of pending cases. Your
immediate review and intervention are appreciated.
Sincerely,
Luis A. Ferre.
______
Hispanic National Bar Association,
Washington, DC, May 9, 2000.
Hon. Orrin Hatch,
U.S. Senate, Senate Russell Office Building,
Washington, DC.
Dear Senator Hatch: On behalf of the Hispanic National Bar
Association and the United States Hispanic Chamber of Commerce, we are
writing to express our support for the nomination of Jay A. Garcia-
Gregory, Esq. to the United States District Court for the District of
Puerto Rico.
Both the United States Hispanic Chamber of Commerce and the
Hispanic National Bar Association are non-partisan organizations that
have as one of their goals to promote the appointment of qualified
Hispanic candidates to the Federal judiciary. As such, we recognize and
commend the work that you have undertaken, as Chairman of the Senate
Judiciary Committee, on behalf of the Hispanic community. In fact, as
in the case of Judge Richard Paez, we have come to count on your
support. While we are conscious of--and thankful for--your prior
support to our organizations' goals, we must come to you again to seek
your assistance with the nomination of a highly qualified Hispanic
Attorney to the Federal bench.
The Hispanic National Bar Association and the United States
Hispanic Chamber of Commerce are pleased to recommend Jay Garcia-
Gregory, Esq. to fill an almost six-year vacancy in the United States
District Court for the District of Puerto Rico. Mr. Garcia-Gregory has
over 25 years of trial and appellate practice at the Federal level as
well as sterling academic credentials. Mr. Garcia Gregory's work ethic
has earned him a reputation for professional excellence and the trust
and respect of the legal community in Puerto Rico.
On behalf of both our organizations, we thank you again for your
assistance and continued commitment to the advancement of qualified
Hispanics to the Federal bench. In accordance with this commitment, we
further urge you to expedite the nomination of Jay Garcia-Gregory to
the United States District Court for the District of Puerto Rico, where
a jurist of his caliber is desperately needed.
Sincerely,
George Herrera,
President and Chief Executive Officer, U.S. Hispanic Chamber of
Commerce.
Alice M. Velazquez,
National President, Hispanic National Bar Association.
______
Government of Puerto Rico,
Office of the Governor,
La Fortaleza, San Juan, PR, February 14, 1997.
The President,
The White House,
Washington, DC.
Dear Mr. President: One of the seven judgeships on the United
States District Court for the District of Puerto Rico has been vacant
ever since June 1, 1994. Taking into account both the Court's heavy
docket and the intensity of Federal and local efforts in the crusade
against crime and drugs, we earnestly recommend that all authorized
judicial positions be filled without delay.
In our estimation, the best available candidate for the
aforementioned vacancy is an esteemed attorney by the name of Jay A.
Garcia-Gregory. This gentleman has been a distinguished member of the
Bar for many years. His credentials, as summarized in the attached
resume, are impressive. His integrity is beyond reproach. He has
extensive experience in Federal jurisprudence and is held in high
regard by all of the Judges of Puerto Rico's U.S. District Court for
his ability, as well as for his knowledge of the law.
Given the constraints that the Congressional legislative calendar
may impose on this and other appointments, we shall be most grateful if
the Administration will expedite its consideration of Mr. Garcia-
Gregory's prospective nomination to the bench. To that end, your
assistance would be very much appreciated by us both.
Jay Garcia-Gregory has our full support and confidence for this
important post. And, because Puerto Rico lacks representation in the
U.S. Senate, we respectfully solicit that your Administration place a
priority on judicial recommendations which, as in the present instance,
are offered jointly by Puerto Rico's chief executive and by its sole
elected representative in Congress. Thank you very much for your
attention to this matter.
With our warm salutations and kindest best wishes.
Sincerely,
Pedro Rossello,
Governor of Puerto Rico.
Carlos Romero-Barcelo,
Member, House of Representatives.
______
Government of Puerto Rico,
House of Representatives,
May 2, 2000.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate, Senate Russell
Office Building, Washington, DC.
Dear Mr. Chairman: I am writing to you today on an issue that is of
the utmost importance to us in Puerto Rico. As we were able to discuss
while on your visit to my office, there is a very pressing need to fill
the four-year old vacancy in the U.S. District Court for the District
of Puerto Rico. Nonetheless, I am perfectly clear that the process
needs to be as rigorous and conscientious as possible, in order to make
sure that you confirm the most appropriate nominee to fill a lifetime
position in our federal judiciary.
Therefore, totally conscious of your grave responsibility, I want
to utilize this opportunity to recommend, in the most respectful
manner, the confirmation of Mr. Jay Garcia-Gregory as District Judge
for the U.S. District Court for the District of Puerto Rico. I do so
for all the possible reasons.
Ever since the beginning of this opening in our District Court, Mr.
Garcia-Gregory has been the only candidate that has received consensus
support from both Republicans and Democrats in the Island. That is why
many people are pleased, that on the third try, President Clinton
decided to heed the advice of his friends in Puerto Rico, as to why Mr.
Garcia-Gregory was definitely the right person for the position.
As the Republican Speaker of the House of Representatives of Puerto
Rico and highest ranking Republican elected official, I am totally
pleased with the nomination and fully confident that Mr. Garcia-Gregory
will turn out to be one of the better judges that our District Court
has ever had. His qualifications speak for themselves.
Mr. Garcia-Gregory has been a highly respected attorney in our
Island for many years. His professional experience, first in the
academia, then as a law clerk in the U.S. District Court and finally
for over 25 years as practicing attorney allow him to stand out from
among his peers (as publicly expressed by Chief Judge Hector Lafitte of
our U.S. District Court for the District of Puerto Rico upon hearing of
the nomination). Also, people, both within and outside the legal
community, admire the quality of his work, his measured approach to
issues and controversies, and the composure and politeness that
distinguish his professional demeanor. That is why I am fully convinced
that Mr. Garcia-Gregory has the judicial temperament to sit on the
bench. More importantly though, I am relieved that Mr. Garcia-Gregory
will have the opportunity to serve on our U.S. District Court, because
I am certain that as a judge he will exercise the appropriate
constraint that is required of our judiciary. He will definitely be a
judge that deeply respects our Constitution and the Rule of Law, and
not one who insists on viewing his position as one that allows him to
create public policy.
Finally, I can attest that Mr. Garcia-Gregory also stands out
because of his personal and moral qualifications. His compassion and
respect for human life have earned the respect of even those who may
not share in his beliefs.
I am totally totally convinced that Mr. Garcia-Gregory clearly
surpasses all the standards that you may require for nominees to our
Federal Judiciary. Therefore, I believe that he shall be allowed to
serve as the next District Judge in the U.S. District Court for the
District of Puerto Rico.
Sincerely,
Edison Misla-Aldarondo.
______
National Hispanic Leadership Agenda,
Washington, DC, May 24, 2000.
Dear Senator Hatch: On behalf of the National Hispanic Leadership
Agenda (NHLA), I am writing to ask your support of Jay A Garcia-
Gregory's nomination to the United States District Court for the
District of Puerto Rico. Mr. Garcia-Gregory is a distinguished member
of the Puerto Rico Federal Bar with over twenty-five years of
experience in trial and appellate practice. He has received broad
support from the Hispanic community, and from the Federal Bar
Association and Puerto Rico Government. Furthermore, he is fully
supported by the Hispanic National Bar Association-Puerto Rico Chapter,
which is comprised of members from all political parties on the Island.
Not only would Garcia-Gregory's nomination be an asset to the federal
bench, it would also resolve a 6-year judicial vacancy in the U.S.
District Court for the District of Puerto Rico.
Mr. Garcia-Gregory's impressive track record includes a number of
distinguished and prestigious positions. He has voluntarily served on
the Federal District Court Examination Committee and as an Instructor
of the Federal Jurisdiction and Appellate Practice in the Bar Review
Course sponsored by the Puerto Rico Federal Bar Association. Mr.
Garcia-Gregory also serves as Chairman of the Federal District Court
Admissions Committee and the Committee for the Review and Amendment of
the District Court's Local Rules.
On April 5, 2000, President Clinton nominated Mr. Jay A. Garcia-
Gregory, Esq. to fill the vacant judgeship in the U.S. District Court
for the District of Puerto Rico, which has been classified as an
``emergency vacancy'' by the administrative Office of the United States
Courts. With a judicial vacancy since June 1994, there has been an
increasing civil and criminal docket congestion in the District of
Puerto Rico. It is imperative that a nomination to this vacant
judgeship proceed to relieve this judicial emergency.
In light of Garcia-Gregory's impeccable credentials and the
judicial ``vacancy emergency'' in the District of Puerto Rico, we urge
you to move Garcia-Gregory's nomination forward to the full Senate for
a confirmation vote.
Sincerely,
Manuel Mirabal,
Chair.
__________
Responses of Beverly B. Martin to Questions From Senator Thurmond
Question 1. We frequently hear the argument that the courts act in
response to various social problems because the legislature has failed
to act on important issues. What is your view of courts acting in this
manner?
Answer 1. It is not the proper role of courts to act to solve
social problems. The United States Constitution establishes a system of
separate powers, granting limited jurisdiction to federal courts to
decide actual cases and controversies of parties with standing to bring
the action. In our system of separation of powers, it is the province
of the political branches of government to respond to social problems,
and in that regard a legislature may express policy not only by taking
action, but also by taking no action.
Question 2. Do you have any personal objections to the death
penalty that would cause you to be reluctant to impose or uphold a
death sentence?
Answer 2. The Supreme Court of the United States has upheld the
constitutionality of the death penalty, and I have no personal
objections to the death penalty which would cause me to be reluctant to
apply the precedent of the Supreme Court in that regard.
Question 3. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a Federal judge?
Answer 3. Mandatory minimum sentences have been held
constitutional, and I would have no reluctance to impose or uphold
mandatory minimum sentences if I were confirmed as a Federal District
Court judge. During my tenure as a federal prosecutor, I have
prosecuted under mandatory minimum criminal sentences.
Question 4. As you are well aware, the sentencing of criminal
defendants in Federal court is conducted under the Federal Sentencing
Guidelines. Some argue that the Guidelines do not provide enough
flexibility for the sentencing judge, while others say the Guidelines
provided needed consistency. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 4. During my entire tenure as a Federal prosecutor, the
Federal Sentencing Guidelines have governed Federal sentencing, so it
is the only method of sentencing which I have known. For that reason, I
am accustomed to and comfortable with the application of the Federal
Sentencing Guidelines. Further, the Supreme Court of the United States
has upheld the constitutionality of the Federal Sentencing Guidelines,
and Federal District Court judges are therefore bound to apply them.
______
Responses of Beverly B. Martin to Questions From Senator Ashcroft
Question 1. In your view, to what extent, if any, do the rights
protected by the Constitution grow or shrink with changing historical
circumstances?
Answer 1. The rights protected by the Constitution do not grow or
shrink with changing historical circumstances; they are reflected in
the plain and unchanging language of the document. Over time, however,
those rights will necessarily require application to new subject
matter, such as technological advances.
Question 2. If a particular judge or court has a high rate of
reversal on appeal, or by the Supreme Court, is that a problem? If it
is, what can and should be done to remedy that problem?
Answer 2. Although any judge or court may be found to have erred
from time to time, it would certainly not be desirable to have a high
rate of reversal on appeal, or by the Supreme Court. If a Federal
District Court judge found that he or she had a high rate of reversal,
every attempt should be made to remedy the problem by redoubling
efforts to be thoroughly familiar with all applicable Supreme Court and
Circuit Court precedent, and taking great care to apply it properly.
Further, it would be necessary to conduct a thorough review of the
reversals to determine the nature of the underlying problem and how it
could be corrected.
Question 3. Is ``substantive due process'' a legitimate
constitutional doctrine?
Answer 3. ``Substantive due process'' is a term used by
Constitutional scholars to describe the practice of Courts relying on
the due process clause of the Fourteenth Amendment to the U.S.
Constitution to review not only the methods or procedures of government
action, but the substance of those actions. Although I do not consider
myself a constitutional scholar, those who are describe this doctrine
as one that has enjoyed favor with courts from time to time during the
history of this country. For example, the series of cases beginning
with Lochner v. New York, 198 U.S. 45 (1905) demonstrate thinking on
the part of the Supreme Court at that time, that the due process clause
served as a protection for substantive and ``fundamental'' economic
rights of citizens. In the recent case of Washington v. Glucksberg, 521
U.S. 702 (1997), the Supreme Court recognized substantive due process
as a doctrine which continues to be legitimate.
If I were confirmed as a Federal District Court judge, it would be
my duty to decide actual cases and controversies of parties with
standing to bring a particular case before the court, rather than apply
broad constitutional doctrines. further, it would be my duty to honor
and apply the precedent of the United States Supreme Court and the
Circuits Courts on any legal issue that came before me.
Question 4. Is it appropriate for federal judges to recognize new
``substantive due process'' rights? If yes, what should the guiding
principles be?
Answer 4. If I were confirmed as a Federal District Court judge, it
would be my duty to apply the precedent of the Supreme Court of the
United States and the Circuit Court with regard to any ``substantive
due process'' rights, recognizing binding precedent. It would not be
appropriate for me to recognize new rights for which there was no basis
in precedent.
Question 5. What is your understanding of the holding in United
States v. Lopez, 514 U.S. 549 (1995)? What test would you apply to
determine if a statute exceeded the power of Congress to enact under
the Commmerce Clause?
Answer 5. In United States v. Lopez, 514 U.S. 549 (1995), the
Supreme Court of the United States invalidated the Gun-Free School
Zones Act, which made it a federal criminal offense for any individual
to knowingly possess a firearm within a school zone. The Court based
its decision on a finding that Congress had exceeded its authority
under the Commerce Clause in enacting the Gun-Free School Zone because
possession of a gun in a local school zone was not economic activity
that substantially affected interstate commerce.
If confimed as a Federal District Court Judge, I would be bound to
apply the test outlined by the Supreme Court in Lopez, as recently
elaborated on in United States v. Morrison, 120 S. Ct. 1740 (2000).
That test looks to whether the activity being regulated by a statute
``substantially affected interstate commerce.'' For purposes of
applying that test, it is only appropriate to aggregate intrastate
incidences of any particular activity if it is economic in nature.
Question 6. Do you think that there is tension between the Supreme
Court's holdings in Romer v. Evans, 517 U.S. 620 (1996) and Bowers v.
Hardwick, 478 U.S. 186 (1986)? If there is, how would you reconcile
that tension? If there is not, how are they reconcilable?.
Answer 6. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court
struck down an amendment to the Colorado Constitution that prohibited
all legislative, executive or judicial action designed to protect
homosexual persons from discrimination. The Supreme Court held that the
amendment violated the Equal Protection Clause of the United States
Constitution because it imposed a ``broad and undifferentiated''
disability on a single named group, and it imposed this disability
without a rational relationship to legitimate state interests.
In Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court
upheld the Georgia statute which prohibited sodomy, rejecting arguments
that the U.S. Constitution confers a fundamental right upon homosexuals
to engage in sodomy. In so holding, the Supreme Court upheld the
legislative authority of the State of Georgia to criminalize activity
based upon ``notions of morality.''
While these cases both deal with the issue of homosexual rights,
they deal with very different issues. Therefore, there is no tension
between the Supreme Court's holding in the two cases, and Romer does
not change the fact that homosexuals are not a constitutionally
protected class.
Question 7. Is there a legislative classification that would fail
rational basis review?
Answer 7. Under a rational basis review, a classification in a
statute bears a strong presumption of validity, and those attacking the
rationality of a legislative classification have the burden to negate
every conceivable basis which might support it. Question 6 raises the
point that in Romer v. Evans, 517 U.S. 620 (1966), the Supreme Court
invalidated the amendment to the Colorado Constitution on a rational
relationship basis standard.
Question 8. Is a state program that gives parents a set sum of
money to be used by the parent to pay for tuition at any school they
choose, public, private, religious or non-sectarian, constitutional?
Answer 8. The Supreme Court of the United States has not ruled on
the constitutionality of publicly funded tuition vouchers for parents
to be used in a private, religious or non-sectarian school of their
choice. However, the analysis of this question would look to the
Establishment Clause in the First Amendment of the United States
Constitution. Since 1971, the Court has evaluated these cases pursuant
to the test it established in Lemon v. Kurtzman, 403 U.S. 602 (1971).
Under this test, a court must consider (1) whether a law has a secular
purpose, (2) whether it has the primary effect of advancing or
inhibiting religion, and (3) whether it fosters an ``excessive
entanglement'' of church and state.
If I were confirmed as a Federal District Court judge, I would be
bound to follow this and other precedent established by the Supreme
Court and the Circuit Court with regard to the Establishment Clause of
the First Amendment.
Question 9. Please define judicial activism. Is Lochner v. New
York, 198 U.S. 45 (1905) an example of judicial activism? Please
identify three Supreme Court opinions that you believe are examples of
judicial activism (not including Lochner if your answer to the prior
question was yes.) Is Roe v. Wade, 410 U.S. 113 (1973) an example of
judicial activism?
Answer 9. Judicial activism has been defined as an approach on the
part of a judge that falls into the realm of policy-making or intruding
on the prerogative of the legislative or executive branches of
government. This approach would contrast with a judge who confines his
rulings to the actual case or controversy brought to the court by a
party with standing to raise the issue.
If I were confirmed as a Federal District Court judge, I would be
duty bound to follow the precedent of the Supreme Court whether I
personally agree with the Court's analysis in any particular case or
not. For that reason, I believe it would not be appropriate for me to
characterize precedent of the Supreme Court as ``activist''.
Question 10. Do you believe that the view of the death penalty
taken by Justices Brennan, Marshal and Blackman--that it is
unconstitutional, despite clear constitutional text sanctioning it--is
permissible view for a federal judge to hold?
Answer 10. In Gregg v. Georgia, 428 U.S. 153 (1973), the Supreme
Court of the United States upheld the constitutionality of the death
penalty. Therefore it is not permissible for lower courts to hold
otherwise.
______
Responses of Beverly B. Martin of Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal court and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect, even if you personally disagree with such precedents?
Answer 1. Yes, I am committed to following the precedents of higher
courts faithfully and giving them full force and effect, even if I
personally disagree with such precedents.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores where the Court struck down the Religious
Freedom Restoration Act.
Answer 2. If I were confirmed as a Federal District Court judge I
would be bound by Supreme Court and Circuit Court precedent. Even if I
believed a court had erred in rendering a decision, and I would
nevertheless apply that decision. If confirmed, I would be bound by the
Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507
(1997), and would abide by that ruling.
Question 3. Regardless of your personal feelings on these issues,
are you committed to following precedent of higher courts on equal
protection issues?
Answer 3. Yes, regardless of my personal feelings on these issues,
I am committed to following precedent of higher courts on equal
protection issues.
Question 4. Do your have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 4. The Supreme Court of the United States upheld the
constitutionality of the death penalty in Gregg v. Georgia, 428 U.S.
153 (1973). I do not have any legal or moral beliefs which would
prevent me from applying Supreme Court precedent with regard to the
death penalty.
Question 5. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 5. As a federal prosecutor, I am generally familiar with the
Antiterrorism and Effective Death Penalty Act of 1996, and Congress'
attempts to cut down on delays between convictions of capital offenders
and their executions. If I were confirmed as a Federal District Court
judge, I would be bound to presume that statute constitutional (like
any other Act passed by Congress), and apply it along with the
applicable Supreme Court and Circuit Court authority on the subject. I
believe that Federal Courts should dispose of capital cases, as all
other cases, in a fair and expeditious manner.
Question 6. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of each of these authorities is
consistent with the exercise of the Article III judicial power.
Answer 6. In reviewing the legal effect of a statute or
constitutional provision, the most compelling authority is the plain
language of the statute or provision. Statutes are presumed to be
constitutional. A Federal District Court judge may legitimately use
legal precedent from the Supreme Court of the United States and the
Circuit Court to determine the legal effect of a statute or
constitutional provision. In the event of a real ambiguity or lack of
clarity in a statute, a judge may look to legislative history, however
committee reports and remarks of individual legislators may be relied
upon only with some caution.
The United States Constitution establishes a system of separation
of powers, with Article III bestowing limited jurisdiction to Federal
Courts to decide actual cases and controversies brought before them. It
is not the role of the judicial branch to entangle itself in policy
issues, which are the domain of the political branches of our
government.
Question 7. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and the
original intent of the Framers of the Constitution; (2) discernment of
the ``community's Interpretation'' of constitutional text, see William
J. Brennan. The constitution of the United States: Contemporary
Ratification, Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 7. Looking to the plain meaning of the text of the
Constitution and the original intent of the Framers of the Constitution
is a legitimate method of interpretation. Under the rules of
construction, in interpreting the Constitution, one would first look to
the plain language of the document. If confirmed as a Federal District
Court judge, I would also be bound by any rulings from higher courts as
to the existence or non-existence of particular constitutional rights.
The approach of Justice Brennan--how he ``draw[s] meaning'' from
the text of the Constitution, stating that'' * * * when Justices
interpret the Constitution they speak for their community, not for
themselves alone''--appears to be an approach that is not appropriate
for a Federal District Court judge. If confirmed as a Federal District
Court judge, my role would necessarily be more limited. The
Constitution establishes a system of separate powers, granting limited
jurisdiction to federal courts to decide actual cases and controversies
of parties with standing to bring them. Determining and addressing the
needs or desire of communities are policy-making which falls into the
province of the political branches of government.
The Constitution provides a method for amending the document in
Article V. This method of amending the Constitution assigns the
responsibility to Congress and State legislatures rather than to the
judicial branch. Any right established by ratification of an Amendment
under Article V would be a legitimate way to establish a new
constitutional right.
Question 8. How would you, if confirmed, analyze a challenge to the
constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 8. If confirmed as a Federal District Court judge, it would
be my duty to treat any statute subject to challenge with the
presumption that it is constitutional. If the challenge was not one of
first impression, I would be bound by the ruling of the higher court on
the subject.
In a case of first impression, I would likewise begin with a
presumption of constitutionality, and determines if the Supreme Court
and the controlling Circuit Court had ruled on any analogous statutes.
If so, I would apply the analysis used by the higher court in the
analogous case. If not, I would examine the analysis of other Circuit
Courts in dealing with the same or similar statutes for guidance is
analyzing the statute.
Question 9. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of these sources of law impact the
scope of the judicial power and the federal government's power under
Article III?
A. Griswold v. Connecticut, 381 U.S. 479 (1965).
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 9. In Griswold v. Connecticut, 381 U.S. 479 (1965), the
Supreme Court held that a Connecticut statute which outlawed the use of
contraceptives unconstitutionally introduced upon the right of marital
privacy. Justice Douglas, the author of the majority opinion, held that
the guarantees of the Bill of Rights have penumbras, formed by the
emanations from those guarantees that give them ``life and substance.''
The majority opined that guarantees in the First, Third, Fourth, Fifth
and Ninth Amendments to the Constitution, each created zones of
privacy, which, taken together, created a right to privacy which was
violated by the Connecticut statute.
In Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme court upheld
the dismissal of a suit brought by state probation officers against the
State of Maine alleging a violation of the overtime provisions of the
Fair Labor Standards Act. In that decision, Justice Kennedy speaking
for the majority, held that the Eleventh Amendment to the U.S.
Constitution bars lawsuits against States in State court. The Court
held that ``sovereign immunity derives not from the Eleventh Amendment
text but from the structure of the original Constitution itself.''With
regard to the fidelity of these cases to the text and original intent
of the Constitution, it can be said that both Griswold and Alden
represent cases in which the Court found rights which were not in the
text of the Constitution.
Although the Due Process Clause of the Fourteenth Amendment is
largely used in evaluating State Procedures, the Supreme Court has
recognized that the Amendment also has a component that precludes
States from enacting laws that infringe on substantive rights. The
Griswold and Alden cases demonstrate that the Court has extended these
substantive protections in the areas such as procreation, marriage, and
bodily integrity, but has not, in more recent years, extended those
substantive protections to the area of economic regulations.
Question 10. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with the Congress'
power and on the federal government's power compared whit the power of
state governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
B. United States v. Lopez, 514 U.S. 549 (1995).
Answer 10. Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme
Court upheld a federal statute that prevented individual farmers from
growing more than a pre-determined amount of wheat. This legislation
was upheld on the basis of Congress' power to regulate commerce
pursuant to Article I of the Constitution, the argument being that
overproduction of wheat by individual farmers, in the aggregate, could
affect the interstate wheat market.
In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court
struck down the federal Gun-Free School Zones Act, which made it a
crime to knowingly carry a firearm within a ``school zone.'' The Court
found that the statute had no jurisdictional requirement that the gun
had traveled in interstate commerce, and there had been few or no
findings by Congress about the interstate effects of the criminal act.
For these reasons, the Court decided there was insufficient link to
interstate commerce to justify the statute.
These cases demonstrate the range of views of the Supreme Court
when considering legislation enacted pursuant to the Commerce Clause.
The view expressed by the Court in Lopez is more restrictive of
Congress' power, the byproduct of which may be more autonomy on the
part of the states when legislating in these areas.
Question 11. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
B. Printz v. United States, 521 U.S. 898 (1997).
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
E. Baker v. Carr, 369 U.S. 186 (1962).
F. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 11. In United States v. Lopez, 514 U.S. 549 (1995), The
Supreme Court struck down the federal Gun-Free School Zones Act, which
made it a crime to knowingly carry a firearm within a ``school zone.''
The Court found that the statute has no jurisdictional requirement that
the gun had traveled in interstate commerce, and there had been little
or no findings by Congress about the interstate effects of the criminal
act. For these reasons, the Court decided there was insufficient link
to interstate commerce to justify the statute.
In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court
reviewed the interim provisions of the Brady Handgun Violence
Prevention Act, which required State law enforcement officers to run
background checks on prospective gun buyers and perform other related
duties. The Court held that even an interim requirement that state law
enforcement officials implement federal regulatory programs by
legislation and executive action placed an unconstitutional obligation
on state officers to execute federal laws.
In Alden v. Maine, 119 S. Ct. 2240 (1999). The Supreme Court upheld
the dismissal of a suit brought by state probation officers against the
State of Maine alleging a violation of the overtime provisions of the
Fair Labor Standards Act. In that decision. Justice Kennedy writing for
the majority, held that the Eleventh Amendment to the U.S. Constitution
bars lawsuits against States in state court. The Court held that this
``sovereign immunity derives not from the Eleventh Amendment text but
from the structure of the original Constitution itself.''
Baker v. Carr, 369 U.S. 186 (1962) involved a suit brought by
certain Tennessee voters who alleged that a state statute diluted their
right to vote, and therefore deprived them of equal protection under
the Fourteenth Amendment to theUnited States Constitution. The lower
federal courts had dismissed the claims of the voters, holding that
they did not have jurisdiction of the matter. The Supreme Court
reversed the lower court holding, stating that because the voters were
alleging the deprivation of any right or privilege secured by the U.S.
Constitution, the Federal District Court should have original
jurisdiction of the matter.
In Shaw v. Reno, 509 U.S. 630 (1993), the Supreme Court faced
another voting rights case, this one involving allegations that North
Carolina's redistricting legislation reflected a constitutionally
improper effort to segregate voters into separate districts on the
basis of race. The Supreme Court found the claims of the voters were
sufficient to state a claim upon which relief could be granted under
the equal protection clause, and remanded the case to the Federal
District Court for consideration of those claims.
These cases demonstrate an increased emphasis by the Supreme Court
of the United States on the autonomy and independence of the state
systems as opposed to the federal government. Generally the Court has
acted to curtail Congress' Article I ``commerce power''; relied more
heavily on the tenth amendment as a limitation on Congress' power to
enact legislation affecting the States; and strengthened the concept of
State sovereign immunity as established by the Eleventh Amendment.
Question 12. Do you believe that a federal district court has the
institutional expertise to set rules for and oversee the administration
of prisons, schools, or state agencies?
Answer 12. No, Federal District Courts do not have the
institutional expertise to set rules for and oversee the administration
of prisons, schools, or state agencies. Traditionally the
responsibility for running of schools, prisons and state agencies is
vested in the executive branch of government, and therefore it is that
branch, rather than the judicial branch, that has been equipped with
the expertise to set rules for and oversee the administration of these
institutions.
Question 13. In ruling on the constitutionality of a statute, what
weight should a court give to the fact that the challenged statute
existed before and after the ratification of the constitutional
provision at issue? Assume the court faces this issue as a matter of
first impression.
Answer 13. Under ordinary rules of construction, constitutional
provisions take precedent over particular statutory provisions.
However, when a statute has preexisted a constitutional provision, some
weight should be given to the fact that the constitutional provision
was passed with knowledge of the existing statute, leading to
consideration of the argument that drafters of the constitutional
provision intended for the new constitutional provision and the
existing statute to coexist.
______
Responses of Beverly B. Martin to Questions From Senator Smith
Question 1. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If a nominee for any federal
judgeship refuse to answer questions about a Constitutional issue,
should that individual be confirmed?
Answer 1. Nominees for federal judgeships should be conversant with
Constitutional issues and be prepared to respond to questions about
Constitutional issues. However, it is a violation of judicial canons
for judicial candidates to give advisory opinions or prejudge matters
which they may be called upon to decide if confirmed. Therefore, there
are certain questions that judicial candidates cannot appropriately
answer, and confirmation should not be withheld if they abide by those
canons.
Question 2. Article II. Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the senate. If you were a member of the United
States Senate, would you agree that it is difficult to advise and
consent to a nominee when a candidate refuses answer questions on
Constitutional issues?
Answer 2. Members of the United States Senate have a solemn
responsibility to advise and consent to nominees for federal
judgeships. If a candidate were to refuse to answer any and all
questions regarding Constitutional issues, that would make the job of
advice and consent very difficult. However, because the judicial canons
prohibit judicial candidates from prejudging cases, issues or statutes
that they may later be called to rule upon, there may be some questions
that are not properly answered by the candidate. Advise and consent
should not be withheld if questions are not answered for these reason.
Question 3. What is the purpose of the United States in holding
hearings on nominees for the federal bench?
Answer 3. Hearings are held on judicial nominees in order to
facilitate the Senate's responsibility to advise and consent on their
nominations.
Question 4. Is it possible for a Senator to advise and consent to a
nominee if the nominee simply refers to precedent without explaining
his or her legal analysis?
Answer 4. Yes, where a judicial nominee demonstrates an
understanding of and respect for the responsibilities of an Article III
judge, as well as a dedication to the work the position entails, it is
possible for a Senator to advise and consent to a nominee, even if the
nominee refers to precedent without explaining his or her legal
analysis. Indeed, where binding precedent exists, precedent and
analysis in the controlling case[s] are applicable to the advice and
consent process.
Question 5. How can I as a Senator advise and consent to a nominee
if nominee simply refers to precedent without explaining his or her
legal analysis?
Answer 5. A Senator can advise and consent to judicial nominees, by
satisfying himself that any given judicial nominee is dedicated to
properly carrying out the role of an Article III judge. Where binding
precedent exists, precedent and analysis in the controlling case[s] are
applicable to the advice and consent process.
Question 6. What questions are legitimate to ask a candidate
without the candidate prejudicing himself or herself?
Answer 6. The Judicial Canons do not permit a judicial candidate to
issue advisory opinions or prejudge issues or statutes that they may,
in the future, be called upon to consider. However, questions designed
to determine a candidate's background, work ethic, knowledge of the
law, knowledge of existing precedent, temperament, fairness, and
commitment to properly carrying out the role of an Article III judge
are all legitimate and appropriate inquiries.
Question 7. Are there any questions that you feel are off limits
for a Senator to ask?
Answer 7. No, a Senator has the solemn responsibility to advise and
consent as to judicial nominees, and should ask any question he feels
will assist him in carrying out that duty.
Question 8. If a U.S. District Court Judge or U.S. Court of Appeals
judge concludes that a Supreme Court precedent is flatly contrary to
the Constitution, are there any circumstances under which the Judge may
refuse to apply that precedent to the case before him or her?
Answer 8. None that I am aware of.
Question 9. If you were a Supreme Court Justice in 1856, what would
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
Answer 9. At the time of the Dred Scott decision, I was not privy
to the arguments made to the Court, the briefs submitted, the record in
the case, nor the positions of those who would have been my colleagues
on the Court. Therefore, I cannot speculate as to what I might have
done at that time.
Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1856), the court apparently held, as you well know there were eight
separate opinions in the case, that black slaves were not citizens of
the United States. How should that precedent be treated by the courts
today?
Answer 10. The Dred Scott decision was superseded by the Thirteenth
and Fourteenth Amendments to the Constitution, and therefore cannot be
relied upon as precedent by courts today.
Question 11. If you were a judge in 1857, would you have been bound
by your Oath and would you have been mandated to follow the binding
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
Answer 11. Yes, as a judge in 1857, I would have been bound by my
oath and mandated to follow the precedent of Dred Scott v. Sandford, 60
U.S. (19 How.) 393 (1856).
Question 12. If you were a Supreme Court Justice in 1896, what
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
Answer 12. At the time of Plessy v. Ferguson, 163 U.S. 539 (1896),
I was not privy to the arguments made to the Court, the briefs
submitted, the record in the case, nor the positions of those who would
have been my colleagues on the Court. Therefore, I cannot speculate as
to what I might have done at that time.
Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority
of the court held as not a violation of the Fourteenth Amendment to the
Constitution a Louisiana statute which provided that all railway
companies provide ``equal but separate accommodations'' for black and
white passengers, imposing criminal penalties for violations by railway
officials. How should that precedent be treated by the Courts?
Answer 13. Plessy v. Ferguson, 163 U.S. 539 (1896) was overruled by
the Supreme Court ruling in Brown v. Board of Education, 347 U.S. 483
(1954), and therefore cannot be relied upon as precedent by lower
courts.
Question 14. If you were a Supreme Court Justice in 1954, what
would you have held in Brown v. Board of Education, 347 U.S. 483
(1954)?
Answer 14. At the time of the Brown v. Board of Education, 347 U.S.
438 (1954), I was not privy to the arguments made to the Court, the
briefs submitted, the record in the case, nor the positions of those
who would have been my colleagues on the Court. Therefore, I cannot
speculate as to what I might have done at that time.
Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954),
the court held that the segregation of children in public schools
solely on the basis of race, even though the physical facilities and
other tangible factors may be equal, deprive the children of the
minority group of equal educational opportunities contrary to the
protections contained within the Fourteenth Amendment to the
Constitution. How should that precedent be treated by the Courts?
Answer 15. Brown v. Board of Education, 347 U.S. 483 (1954)
continues to be the law of the land, and therefore must be relied upon
as precedent by lower courts.
Question 16. If you were a Supreme Court Justice in 1973, what
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
Answer 16. At the time of Roe v. Wade, 410 U.S. 113 (1973), I was
not privy to the arguments made to the Court, the briefs submitted, the
record in the case, nor the positions of those who would have been my
colleagues on the Court. Therefore, I cannot speculate as to what I
would have done at that time.
Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held
that a Texas statute which proscribed an abortion except when necessary
to save the life of the mother was a violation due process clause of
the Fourteenth Amendment as an unjustified deprivation of liberty. Do
you agree with the legal reasoning of the holding or of the Justice
Renquist dissent in that case?
Answer 17. I am a nominee to be a Federal District Court judge, and
if confirmed I would be bound by the Supreme Court's ruling in Roe v.
Wade, 410 U.S. 113 (1973) as modified by the Court's more recent ruling
in Planned Parenthood v. Casey, 505 U.S. 833 (1992).
Question 18. We understand the Supreme Court precedent, but what is
your personal view on the issue of abortion?
Answer 18. I have no personal view on the subject of abortion that
would prohibit me from following Supreme Court rulings on the issue of
abortion.
Question 19. We understand the Supreme Court precedent, but what is
your personal view on the issue of the death penalty?
Answer 19. I have no personal view on the subject of the death
penalty that would prohibit me from following Supreme Court rulings on
the issue of the death penalty.
Question 20. We understand the Supreme Court precedent, but what is
your personal view on the issue of the Second Amendment to the
Constitution?
Answer 20. I have no personal view on the issue of the Second
Amendment to the Constitution that would prohibit me from following the
Supreme Court rulings on the issue on the Second Amendment.
Question 21. In Planned Parenthood v. Casey, 505 U.S. 833 (1992)
the Supreme Court held that the government interest in preserving life
must be balanced against a mother's right of privacy and access to
abortion which may not be unduly burdened. Do you believe the ``right
to privacy'' includes the right to take away the life of an unborn
child?
Answer 21. I have no personal view regarding the right to privacy
that would prohibit me from following the Supreme Court's precedent in
Planned Parenthood v. Casey, 505 U.S. 833 (1992), or other controlling
precedent on the right to privacy.
Question 22. Again, I understand the state of the law on the
Supreme Court's interpretation on the issue of abortion, but I am
interested in your personal beliefs on the issue, do you personally
believe that an unborn child is a human being?
Answer 22. I have no personal view regarding abortion that would
prevent me from following Supreme Court precedent in that regard.
Question 23. Do you believe that the death penalty is
Constitutional?
Answer 23. In Gregg v. Georgia, 428 U.S. 153 (1973), the Supreme
Court of the United States upheld the constitutionality of the death
penalty.
Question 24. If you were a Supreme Court Justice, under what
circumstances would you vote to overrule a precedent of the Court?
Answer 24. In the Supreme Court decision of Planned Parenthood v.
Casey, 505 U.S. 833, (1992), the Court set forth guidance for the
approach to be used when overruling precedent. The Court stated that
when reexamining a prior holding, they make a series of ``prudential
and pragmatic'' considerations. One of the questions posed by the
Court, for example, was whether a rule espoused in a previous case has
proven to be ``intolerable simply in defying practical workability.''
If I were a Supreme Court Justice, I would be bound by this precedent.
Question 25. Do you consider legislative intent and the testimony
of elected officials in debates leading up to passage of an act? And
what weight do you give legislative intent?
Answer 25. The interpretation of a statute requires looking first
to the plain language of the statute as passed, as this is the greatest
evidence of legislative intent. A Federal District Court judge must
look to legal precedent from the Supreme Court of the United States and
the Circuit Court for guidance in the application of statutes. In the
event of a real ambiguity or lack of clarity in a statute, legislative
intent can be considered. However, the remarks of individual
legislators or the testimony of individual elected officials are not as
reliable as committee reports, and both must be relied upon with some
caution.
______
Response of Laura Taylor Swain to Questions From Senator Hatch
Question 1. In one of your writings, you state that there has been
a ``backlash'' against affirmative action programs, and that
affirmative action ``program have opened doors for people of color and
women, by permitting race and gender to be weighed in admission and
hiring decisions in much the same way that factors such as family or
social connections, geographical origin and sports talent (many of
which, by reinforcing existing affinities, tend to preserve existing
racial and cultural demographic patterns) have long been considered in
`merit-based' decision making. If `merit' in the form of academic
achievement is to be the paramount criterion, we will have to do more
as a society to prepare and support members of minority communities on
the road to achievement.'' Laura Taylor Swain, ``Thoughts on the LSAC
Bar Passage Study--Good News and Good News'', 67 The Bar Examiner 4, 17
(Nov. 1998). In addition, you state that ``the elimination of
affirmative action criteria from admissions in certain public
universities has already made a striking, negative difference in the
diversity of their more selective campuses.'' What do you think we can
do as a society to ``support members of minority communities on the
road to achievement''? In your view, does government have a compelling
interest in promoting diversity?
Answer 1. The article identifies several of the types of actions
that can be undertaken by private citizens to assist minority
communities and individuals, including mentoring programs, financial
support of quality educational programs for all members of our society,
and participation in diverse educational communities. With respect to
government action, the Supreme Court has made clear that government
classifications based on race are subject to strict scrutiny. Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 225-26 (1995). The United
States Court of Appeals for the Second Circuit has indicated that
Adarand, which involved a racially based set-aside in contracting,
requires the application of strict scrutiny to all government
classifications based on race, including classifications in the area of
education. Brewer v. West Irondequiot Central School Dist., No. 99-
7186, 2000 WL 641052 (2d Cir. May 11, 2000). The United States Court of
Appeals for the Fifth Circuit has held that the goal of promoting
diversity does not constitute a compelling interest (see Hopwood v.
Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1966)); the
Second Circuit has not yet addressed that issue. Strict scrutiny is a
very stringent test. The question of whether promoting diversity
constitutes a ``compelling'' governmental interest is one that, should
I be confirmed as a United States District Judge and the issue
presented to me in the form of a justiciable case or controversy, I
would determine in accordance with the applicable precedents
established by the Supreme Court of the United States and the United
States Court of Appeals for the Second Circuit.
______
Responses of Laura Taylor Swain to Questions From Senator Thurmond
Question 1. We frequently hear the argument that the courts act in
response to various social problems because the legislature has failed
to act on important issues. What is your view of courts acting in this
manner?
Answer 1. Federal courts, as adjudicative bodies of limited
jurisdication, should not perform any policy-making functions,
including when the legislature has not acted on a social problem. A
legislature may engage in policymaking by acting, or by declining to
act, on a matter.
Question 2. Do you have any personal objections to the death
penalty that would cause you to be reluctant to impose or uphold a
death sentence?
Answer 2. No, I have no personal objections to the death penalty
that would cause me to be reluctant to impose or uphold a death
sentence.
Question 3. What is your view of mandatory criminal sentences, and
would you have any reluctance to impose or uphold them as a Federal
judge?
Answer 3. Federal criminal law, as established by Congress,
includes certain mandatory minimum sentencing provisions, I would
sentence individuals in accordance with the requirements of law.
Question 4. As you are well aware, the setencing of criminal
defendants in Federal court is conducted under the Federal Sentencing
Guidelines. Some argue that the Guidelines do not provide enough
flexibility for the sentencing judge, while others say the Guidelines
provided needed consistency. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 4. The Guidelines are part of the Congressionally-
established Federal criminal justice system and reflect the balance
struck by Congress between consistency and flexibility in sentencing.
The Guidelines have been held Constitutional. I would sentence
individuals in accordance with the Guidelines
Question 5. In reviewing a study showing that bar exam passage
rates are lower for minorities than for whites, you wrote: ``If `merit'
in the form of academic achievement is to be the paramount criterion,
we will have to do more as a society to prepare and support members of
minority communities on the road to achievement.'' What specific steps
should society take in the regard?
Answer 5. The article identifies several of the types of actions
that can be understaken by private citizens to assist minority
communities and individuals, including mentoring programs, financial
support of quality educational programs for all members of our society,
and participation in diverse educational communities. With respect to
government action, the Supreme Court has made clear that government
classifications based on race are subject to strict scruinty, Adarand
Construction, Inc. v. Pena, 515 U.S. 200, 225-26 (1995). The United
States Court of Appeals for the Second Circuit has indicated that
Adarand which involved a racially based set-aside in contracting,
requires the application of strict scruinty to all government
classifications based on race, including classifications in the area of
education, Brewer v. West Inrondequiot Central School Dis., No. 99-
7186, 2000 WL 641052 (2d Cir. May 11, 2000).
Question 6. In one speech, you stated: ``The Supreme Court's recent
states' rights decisions particularly in the sovereign immunity area,
change radically settled assumptions regarding private civil litigation
as a means of enforcing federally-recognized rights, including in the
discrimination area.'' To which radically-settled assumptions were you
referring, and how have they been changed?
Answer 6. The sentence was perhaps structured awkwardly--the word
``radically'' was intended to modify the word ``change'' rather than
the term ``settled assumptions.'' I was alluding in that passage to the
change wrought by the decision in Kimel v. Florida Board of Regents.
120 S. Ct. 631 (2000), which struck down the private civil action
provisions of the Age Discrimination in Employment Act insofar as they
apply to States, holding that those provisions were not ``appropriate
[remedial] legislation'' within the meaning of Section five of the
Fourteenth Amendment to the Constitution and thus did not constitute a
valid abrogation of the sovereign immunity of the State. Congress has
chosen, in a number of areas, to provide for private civil litigation
as a principal vehicle for vindication of rights provided for under
Federal statutes, and Kimel may raise questions about the visability of
other private civil action provisions. That is what I meant by
``change[d] radically settled assumptions.'' If I was so fortunate as
to be confirmed, I would apply Kimel and any subsequent decisions to
applicable cases without any hesitation.
______
Responses of Laura Taylor Swain to Questions From Senator Ashcroft
Question 1. In your view, to what extent, if any, do the rights
protected by the Constitution grow or shrink with changing historical
circumstances?
Answer 1. I do not believe that the rights protected by the
Constitution grow or shrink with changing historical circumstances.
During the course of our history, the Constitution has been amended to
provide for rights in addition to those set forth in the Bill of
Rights. Also, such historical developments as changes in technology
(the invention of the telephone, for example) have required the Supreme
Court to apply the language of the Constitution in new settings.
Question 2. If a particular judge or court has a high rate of
reversal on appeal, or by the Supreme Court, is that a problem? If it
is, what can and should be done to remedy that problem?
Answer 2. A high rate of reversal is not desirable. Judges should
always do their best to determine accurately the relevant facts and
apply governing precedent to the legal questions properly raised before
them. Consistency among the levels of the judiciary makes for clarity
in the law and helps to promote public confidence in the judiciary. If
a judge were to have a high reversal rate, it would be appropriate for
that judge to study carefully the reversals, discern any patterns, and
seek to correct any factors leading to repeated errors.
Question 3. Is ``substantive due process'' a legitimate
constitutional doctrine?
Answer 3. The Supreme Court has recognized that the notion of
``substantive due process'' has been narrowed over time. However, the
doctrine has survived in some Supreme Court decisions. For example, in
Washington v. Glucksberg, 521 U.S. 702 (1997), in an opinion by Chief
Justice Rehnquist, the Supreme Court upheld a State ban on assisted
suicide and noted that ``substantive due process'' has been applied in
a ``long line of cases'' and continues to be part of the Supreme
Court's jurisprudence. The Chief Justice emphasized that the Court must
take great care in applying this Constitutional doctrine so as not to
intrude on the democratic process. Whatever the label, I would, if
confirmed, apply the precedents established by the higher courts.
Question 4. Is it appropriate for federal judges to recognize new
``substantive due process'' rights? If yes, what should the guiding
principles be?
Answer 4. No. It is not appropriate for lower federal court judges
to create new ``substantive due process'' rights. If I were confirmed
as a United States District Judge, I would apply the precedents
established by the higher courts.
Question 5. What is your understanding of the holding in United
States v. Lopez, 514 U.S. 549 (1995)? What test would you apply to
determine if a statute exceeded the power of Congress to enact under
the Commerce Clause?
Answer 5. In Lopez, the Court held that the Gun-Free School Zones
Act of 1990 regulated conduct that did not substantially affect
interstate commerce, and that the legislation thus exceeded
Congressional authority to regulate commerce among the several states
under Article I, Section 8 of the Constitution. The Court observed that
the Commerce Clause permits Congress to regulate the use of the
channels of commerce, instrumentalities of interstate commerce or
persons or things in interstate commerce, and activities having a
substantial relation to interstate commerce. Were I to be confirmed as
a United States District Judge, I would apply the relevant tests as
articulated by the Supreme Court or by the Second Circuit based on
Supreme Court precedent.
Question 6. Do you think that there is tension between the Supreme
Court's holdings in Romer v. Evans, 517 U.S. 620 (1996) and Bowers v.
Hardwick, 478 U.S. 186 (1986)? If there is, how would you reconcile
that tension? If not, how are they reconcilable?
Answer 6. Romer and Bowers are reconcilable. In both cases, the
Supreme Court held that the rational basis standard is the appropriate
test for evaluating alleged sexual orientation-based discrimination. In
the Bowers case, the issue of the scope of the States' traditional
police powers was presented to the Court in the context of the question
of whether homosexuals have a fundamental Constitutional right to
engage in a particular type of sexual conduct in a particular setting;
Romer involved an equal-protection clause challenge to a broad State
Constitutional provision that the Court read as imposing civil
disabilities based on status. If, as a United States District Judge, I
were called upon to construe or apply these decisions, I would do so
with careful attention to their holdings, any subsequent governing
decisions, and to the circumstances presented in the case before me.
Question 7. Is there a legislative classification that would fail
rational basis review?
Answer 7. That is a question that cannot be answered in the
abstract. The Supreme Court's articulations of the rational basis
standard admit of the possibility that classifications could fail the
rational basis test. If I were confirmed as a United States District
Judge and presented with a case in which application of the rational
basis standard were appropriate, I would apply the standard in
accordance with the deference required by the applicable precedents of
the higher courts.
Question 8. Is a state program that gives parents a set sum of
money to be used by the parent to pay for tuition at any school they
choose, public, private, religious or non-sectarian, constitutional?
Answer 8. If, as a United States District Judge, I were presented
with a case that raised such issues, I would follow the precedents
established by the higher courts, with careful attention to the
circumstances presented by the particular case or controversy. The
Supreme Court has not yet decided the constitutionality of school
voucher programs permitting parents to use the vouchers to pay for
tuition at schools of their choice. However, the Supreme Court has
indicated that in cases involving challenges under the Establishment
Clause, the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971),
is to be applied. Under that test, the court is to examine whether the
law has a secular purpose, whether it has a primary effect of advancing
religion, and whether it fosters excessive entanglement of church and
state. The Supreme Court clarified that test in Agostini v. Felton, 521
U.S. 203 (1997). As a sitting judge, and as a candidate for appointment
to the Federal District Court bench, it would be inappropriate for me
further to address the constitutionality, under the First Amendment or
any other constitutional provisions, of such a program.
Question 9. Please define judicial activism. Is Lochner v. New
York, 198 U.S. 45 (1905), an example of judicial activism? Please
identify three Supreme Court opinions that you believe are examples of
judicial activism (not including Lochner if your answer to the prior
question was yes). Is Roe v. Wade, 410 U.S. 113 (1973), an example of
judicial activism?
Answer 9. ``Judicial activism'' has been defined as a tendency of
judges to make decisions on issues that are not properly within the
scope of their authority. I have not had occasion to analyze decisions
of the Supreme Court as to whether they constitute ``judicial
activism.'' Rather, as a lawyer, as a Bankruptcy Judge and, if
confirmed, as a United States District Judge, it has been and would
remain my duty to ascertain the holdings of the Supreme Court and
respect and apply the Supreme Court's decisions faithfully and fully.
Question 10. Do you believe that the view of the death penalty
taken by Justices Brennan, Marshall and Blackmum--that it is
unconstitutional, despite clear constitutional text sanctioning it--is
a permissible view for a federal judge to hold?
Answer 10. The Supreme Court has clearly rejected the view in Gregg
v. Georgia, 428 U.S. 153 (1976). I do not believe it would be
permissible under governing precedent for a federal judge to hold that
the death penalty is unconstitutional.
______
Responses of Laura Taylor Swain to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect, even if you personally disagree with such precedents?
Answer 1. Yes. I am committed to following the precedents of higher
courts faithfully and giving them full force and effect, even if I were
personally to disagree with such precedents.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment on the
merits? Take, for example, the Supreme Court's recent decision in City
of Boerne v. Flores, 521 U.S. 507 (1997), where the Court struck down
the Religious Freedom Restoration Act.
Answer 2. Were I to be confirmed as a United States District Judge,
I would be bound in all circumstances to rule in accordance with
applicable Supreme Court and Second Circuit precedent, including City
of Boerne v. Flores, regardless of any personal views about whether a
higher court had seriously erred in rendering a decision. I have no
personal views that would impede my ability to adhere to precedent.
Question 3. Regardless of your personal feelings on these issues,
are you committed to following precedent of higher courts on equal
protection issues?
Answer 3. Yes, I am committed to following precedent of higher
courts on equal protection issues, regardless of any personal feelings
I may have on such issues.
Question 4. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 4. No. I have no legal or moral beliefs which would inhibit
or prevent me from imposing or upholding a death sentence in any
criminal case that might come before me as a federal judge.
Question 5. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 5. Yes. I believe that the federal courts should deal with
all matters, including death penalty cases and collateral attacks on
sentences, fairly and expeditiously, consistent with applicable law. To
the extent delays arise from statutorily-mandated or administrative
procedures put in place by the legislative or executive branches of
government, courts should seek to discharge their duties as efficiently
as possible within the bounds of the law.
Question 6. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of each of these authorities is
consistent with the exercise of Article III judicial power.
Answer 6. The authorities a judge may consider include the plain
language of the statute or constitutional provision, judicial
interpretations of higher courts whose authority is binding on the
court, persuasive interpretations by other courts if there is no such
binding authority, legislative history (particularly such history as
reflects consensus views as to the intended effect of language actually
adopted) if the statute or constitutional provision is ambiguous, and
precedent concerning the construction of statutes and constitutional
provisions. Use of all of the foregoing authorities in the context of
the resolution of cases and controversies is consistent with the
limited judicial power under Article III of the Constitution.
Question 7. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and the
original intent of the Framers of the Constitution; (2) discernment of
the ``community's interpretation'' of constitutional text, see William
J. Brennan, ``The Constitution of the United States: Contemporary
Ratification,'' Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 7. Interpretation of the plain meaning of existing
Constitutional provisions, and discernment of the original intent of
the Framers of the Constitution, have long been recognized by the
Supreme Court as legitimate tools in the recognition of Constitutional
rights. Proper ratification of an amendment to the Constitution is the
authorized vehicle for changes in the Constitution; establishment of a
new right through ratification is clearly a legitimate means of
establishing such a right. Ratification of an amendment is also the
surest sign of popular intent to be bound to the recognition of such a
right. Discernment of the ``community's interpretation'' is a rubric
that may have been unique to Justice Brennan and would not be
legitimate as an approach for a lower federal court judge.
Question 8. How would you, if confirmed, analyze a challenge to the
constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 8. In all matters, I would examine the plain language of the
statute and relevant constitutional provisions to ensure that, at a
minimum, I am aware of the particulars of the language being
interpreted and applied. Where a matter was not one of first
impression, my analytical path would be defined by the analyses and
conclusions reached by the higher courts. In those rare matters of
first impression, the authorities I would consider would include, in
addition to the presumption of constitutionality and the plain meaning
of the statute, available judicial analyses in directly relevant or
analogous areas, legislative history if the provision were ambiguous,
available evidence of original legislative intent, and analogous
statutory provisions and any rulings as to their constitutionality.
Question 9. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of these sources of law impact the
scope of the judicial power and the federal government's power under
article III?
A. Griswold v. Connecticut, 381 U.S. 479 (1965).
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 9. In Griswold v. Connecticut, 381 U.S. 479 (1965), the
Supreme Court held that a statute restricting the use of contraceptives
violated what the Court called a ``right of marital privacy'' that the
Court found ``emanated'' from the ``penumbras'' of rights expressly
guaranteed by the Constitution. In Griswold, the Supreme Court
exercised the judicial power to recognize a right that the Court
considered to be implied by those specifically enumerated in the
Constitution, and circumscribed state regulation in the area of
contraception.
The opinion of the Court in Alden v. Maine, 119 S. Ct. 2240 (1999),
focuses chiefly on historical concepts of sovereignty, the text of the
Constitution, political theory, historical legal antecedents to the
Constitution, the circumstances under which the Eleventh Amendment to
the Constitution was adopted, the text of the Eleventh
Amendment,evidence of original intent, and the history of the type of
statutory provision being challenged. In Alden, the Supreme Court
concluded that Congress could not, in the absence of state
acquiescence, authorize private suits against state entities as a means
of enforcing standards established by the federal government in
employment relationships, a holding that restricted the powers of the
federal government with respect to enforcement of some federal
statutes.
Question 10. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress' power
and on the federal government's power compared with the power of state
governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
B. United States v. Lopez, 514 U.S. 549 (1995).
Answer 10. Both cases concerned the import of the grant of
authority to Congress to regulate ``Commerce * * * among the several
States'' in Article I, Section 8 of the Constitution. The analysis
articulated in the opinion of the Court in Wickard did not examine
directly original intent focusing, rather, on prior Supreme Court
jurisprudence in the Commerce Clause area both before and after
Congress began to exercise affirmatively its powers under that Clause.
Although the opinion does not parse the specific language of the
Clause, its focus on the interstate implications of the regulation of
consumption suggests that the text was the object of the Court's
concern. The opinion of the Court in Lopez focused in large part on
discernment of the interpretive standards established by prior Supreme
Court cases, specifically on the issues of the type of effect on
commerce required for Commerce Clause regulation. Again, the focus was
clearly on whether the regulation at issue fit within the
Constitutional grant of authority. Both cases demonstrate the Supreme
Court's view that the interpretation of the scope of Constitutional
grants of authority is, in the last instance, a matter for the Supreme
Court. Each reflects the Supreme Court's ongoing effort to define in a
manner consistent with the Federal structure of our government and the
limited powers of the Federal government the boundary between Federal
and State authority.
Question 11. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
B. Printz v. United States, 521 U.S. 898 (1997).
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
D. Baker v. Carr, 369 U.S. 186 (1962).
Shaw v. Reno, 509 U.S. 630 (1993).
Answer 11. Recognition of the limitations on Federal government
power and the powers reserved to the States ensures the preservation of
our dual system of sovereignty. The Constitution guarantees certain
rights and also limits the areas in which the Federal government
(including Federal courts) can act, thus leaving the governance of many
areas of life to the States.
In United States v. Lopez, the Supreme Court held that the Gun-Free
School Zones Act of 1990 exceeded Congress' regulatory authority under
the Commerce Clause because the possession of handguns in
Congressionally-defined school zones was not shown to have a
substantial effect on interstate commerce.
Printz v. United States holds that the Congress lacks power to
require non-consenting state officials to participate in the
administration of federal regulatory functions. Thus, the Federal
government could not, as part of an interim background check regime,
require that state law enforcement officials perform certain functions.
Baker v. Carr recognizes the limited power of the Federal courts to
review state political apportionment decisions for conformity with the
Equal Protection guarantees of the Fourteenth Amendment to the
Constitution, notwithstanding nonjusticiability of issues relating to
the Constitutional guarantee of a republican form of government. Shaw
v. Reno deals with apportionment as well, holding that an allegation of
racial gerrymandering violative of the Fourteenth Amendment states a
justiciable claim under the Equal Protection Clause and requires the
application of the strict scrutiny standard.
In Alden v. Maine, the Supreme Court held that Congress lacked
power under the Commerce Clause (Article I, Section 8 of the
Constitution) to subject unconsenting states to private civil damages
lawsuits alleging violations of Federal wage and hours laws.
Question 12. Do you believe that a federal district court has the
institutional expertise to set rules for and oversee the administration
of prisons, schools, or state agencies?
Answer 12. No Courts are not executive or administrative bodies,
and lack substantive expertise in the management of executive branch
functions.
Question 13. In ruling on the constitutionality of a statue, what
weight should a court give to the fact that the challenged statute
existed before and after the ratification of the constitutional
provision at issue? Assume the court faces this issue as a matter of
first impression.
Answer 13. If such a matter is not one of first impression, a court
should follow applicable precedent. In a matter of first impression,
the fact that a challenged statute predates ratification of the
constitutional provision and was not explicitly repealed thereafter is
a relevant factor in the analysis of whether the constitutional
provision at issue was intended to abrogate or supersede the statute.
The treatment of the statute after adoption of the constitutional
provision (including whether it was amended to reflect the
constitutional provision, and whether Congress and/or the states that
ratified the amendment continued to apply it following ratification)
should also be considered. Other important sources of authority in the
determination of issues of first impression are the plain language of
the statute and relevant constitutional provisions, the presumption of
constitutionality, available judicial analyses in directly relevant or
analogous areas, evidence of original legislative intent, and analogous
statutory provisions and any rulings as to their constitutionality.
______
Responses of Laura Taylor Swain to Questions From Senator Smith
Question 1. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If a nominee for any federal
judgeship refuses to answer questions about a Constitutional issue,
should that individual be confirmed?
Answer 1. Among the limitations imposed by the Constitution on the
exercise of the Federal judicial power is the Article III requirement
that the judiciary act only in the context of particular cases and
controversies. It is essential to the integrity of the system and to
public confidence in the judiciary that those coming before the courts
perceive that they will receive a fair hearing, and that the judge's
decision will be based on appropriate analysis of the legal and factual
issues raised in the particular case rather than the judge's
preconceived notions or feelings as to what the law should be. Judicial
candidates and sitting judges should therefore avoid the appearance, as
well as the fact, of prejudging issues that may come before them. This
Article III constraint, which affects exercise of the Article II
appointment power by both the Executive and the Legislative branches,
necessarily places the focus of the appointment process on a
candidate's analytical methods (including the recognition and use of
precedents in interpreting the law), integrity and record rather than
general personal views on particular issues of law or social policy. A
nominee who demonstrates appropriate qualifications in these areas
should, in my view, be confirmed notwithstanding the nominee's
inability to discuss personal views or likely outcomes on particular
Constitutional issues. Of course, it is for a Senator to determine, as
he or she sees fit, whether or not a nominee should be confirmed.
Question 2. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If you were a member of the United
States Senate, would you agree that it is difficult to advise and
consent to a nominee when a candidates refuses to answer questions on
Constitutional issues?
Answer 2. I would certainly feel the weight of the tensions
discussed in the preceding response were I called upon to participate
in the appointment process. Respect for the Constitutional plan and the
availability of other relevant information about nominees would, I
think, enable me to overcome the difficulty and exercise meaningful the
responsibility to ``advise and consent'' notwithstanding a nominee's
inability to discuss personal views or likely outcomes on particular
Constitutional issues.
Question 3. What is the purpose of the United States Senate in
holding hearings on nominees for the federal bench?
Answer 3. I have never had the honor of discussing with any Senator
his or her view of the purpose of such hearings. My understanding and
expectation, based on my own experience and public records concerning
the process, is that it is an opportunity for the Senate to assess the
qualifications of nominees, including the nature and quality of their
thought processes, their personal presence and demeanor, their standing
in the community, their understanding of the roles they would perform
in the positions to which they have been nominated, their understanding
that rulings must be based on law rather than personal views, and other
factors deemed relevant by the Senate.
Question 4. Is it possible for a Senator to advise and consent to a
nominee if a nominee simply refers to precedent without explaining his
or her legal analysis?
Answer 4. Yes, recognition of the role of precedent is a
fundamental element in the performance of the judicial function; the
application of particular precedents is Constitutionally confined to
the case and controversy context. A statement by a nominee of his or
her commitment to adhere to a particular precedent confirms the
nominee's acceptance of the legal analysis incorporated in the
precedent and commitment to follow that analysis. A nominee's
analytical method with respect to particular situations will likely be
illustrated by his or her professional record and, in the case of those
who have previously served as judges, opinions.
Question 5. How can I as a Senator advise and consent to a nominee
without answers to Constitutional questions?
Answer 5. The Senate's respect for and knowledge of the
Constitutional framework, including the need to protect the public
perception of the fairness and impartiality of the judiciary, and its
careful attention to nominees' records and personal and professional
qualities will, I am certain continue to enable it to perform well this
important Constitutional function.
Question 6. What questions are legitimate to ask a candidate
without the candidate prejudicing himself or herself?
Answer 6. A Senator can, of course, ask any questions he or she
deems appropriate. I do not think that a candidate would prejudice him
or herself by responding to questions focusing on issues such as his or
her qualifications, thought processes, understanding of the role he or
she would perform in the position to which the candidate has been
nominated, and the candidate's understanding that rulings must be based
on law rather than personal views.
Question 7. Are there any questions that you feel are off limits
for a Senator to ask?
Answer 7. No. There are no questions that are off limits for a
Senator to ask.
Question 8. If a U.S. District Court Judge or U.S. Court of Appeals
Judge concludes that a Supreme Court precedent is flatly contrary to
the Constitution, are there any circumstances under which the Judge may
refuse to apply that precedent to the case before him or her?
Answer 8. No. Lower court judges are required to rule in accordance
with applicable Supreme Court precedent.
Question 9. If you were a Supreme Court Justice in 1856, what would
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
Answer 9. It is impossible for me to state how I would have held
had I been a Justice in 1856. I must presume that the decision of each
Justice in that case was based on a careful and comprehensive review of
the Constitutional provisions at issue and precedent as then in
existence, the briefs and arguments submitted, detailed knowledge of
the particular facts presented, and careful consultation among the
members of the Court.
Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1856), the court apparently held, as you well know there were eight
separate opinions in the case, that black slaves were not citizens of
the United States. How should that precedent be treated by the courts
today?
Answer 10. It is no longer valid precedent, having effectively been
overruled by the Thirteenth and Fourteenth Amendment to the
Constitution.
Question 11. If you were a judge in 1857, would you have been bound
by your Oath and would you have been mandated to follow the binding
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
Answer 11. Yes. I would have been bound by my Oath and would have
been mandated to follow the binding precedent of Dred Scott v.
Sandford, if I had been a judge in 1857.
Question 12. If you were a Supreme Court Justice in 1896, what
would you have held in Plessv v. Ferguson, 163 U.S. 539 (1896)?
Answer 12. It is impossible for me to state how I would have held
had I been a Justice in 1896. I must presume that the decision of each
Justice in that case was based on a careful and comprehensive review of
the Constitutional provisions at issue and precedent as then
inexistence, the briefs and arguments submitted, detailed knowledge of
the particular facts presented, and careful consultation among the
members of the Court
Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority
of the court held not as a violation of the Fourteenth Amendment to the
Constitution a Louisiana statute which provided that all railway
companies provide ``equal but separate'' accommodations for black and
white passengers, imposing criminal penalties for violations by railway
officials. How should that precedent be treated by the Courts?
Answer 13. It is no longer valid precedent, having been overruled
by Brown v. Board of Education, 347 U.S. 483 (1954).
Question 14. If you are a Supreme Court Justice in 1954, what would
you have held in Brown v. Board of Education, 347 U.S. 483 (1954)?
Answer 14. It is impossible for me to state how I would have held
had I been a Justice in 1954. I must presume that the decision of each
Justice in that case was based on a careful and comprehensive review of
the Constitutional provisions at issue and precedent as then in
existence, the briefs and arguments submitted, detailed knowledge of
the particular facts presented, and careful consultation among the
members of the Court.
Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954),
the court held that the segregation of children in public schools
solely on the basis of race, even though the physical facilities and
other tangible factors may be equal, deprive the children of the
minority group of equal educational opportunities contrary to the
protections contained within the Fourteenth Amendment to the
Constitution. How should that precedent be treated by the Courts?
Answer 15. Brown v. Board of Education should be followed, as it
remains valid precedent.
Question 16. If you were a Supreme Court Justice in 1973, what
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
Answer 16. It is impossible for me to state how I would have held
had I been a Justice in 1973. I must presume that the decision of each
Justice in that case was based on a careful and comprehensive review of
the Constitutional provisions at issue and precedent as then in
existence, the briefs and arguments submitted, detailed knowledge of
the particular facts presented, and careful consultation among the
members of the court.
Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held
that a Texas statute which proscribed an abortion except when necessary
to save the life of the mother was a violation of the due process
clause of the Fourteenth Amendment as an unjustified deprivation of
liberty. Do you agree with the legal reasoning of the holding or of the
Justice Rehnquist dissent in that case?
Answer 17. I do not analyze Supreme Court precedent from the
perspective of evaluating whether I agree with the reasoning of the
majority or the dissenting opinions. The job of a lower federal court
judge is to follow the precedent of the higher courts. I have no
personal issues that would prevent me from following the holding of Roe
v. Wade, as modified by Planned Parenthood v. Casey, 505 U.S. 833
(1992), and any other precedent in this area.
Question 18. We understand the Supreme Court precedent, but what is
your personal view on the issue of abortion?
Answer 18. I have no personal views on the issue of abortion that
would impede my ability to adhere to applicable law in making judicial
determinations.
Question 19. We understand the Supreme Court precedent, but what is
your personal view on the issue of the death penalty?
Answer 19. I have no personal views on the issue of the death
penalty that would impede my ability to adhere to applicable law in
making judicial determinations.
Question 20. We understand the Supreme Court precedent, but what is
your personal view on the issue of the Second Amendment to the
Constitution?
Answer 20. I have no personal views regarding the Second Amendment
to the Constitution that would impede my ability to adhere to
applicable law in making judicial determinations.
Question 21. In Planned Parenthood v. Casey, 505 U.S. 833 (1992),
the Supreme Court held that the government interest in preserving life
must be balanced against a mother's right of privacy and access to
abortion which may not be unduly burdened. Do you believe the ``right
to privacy'' includes the right to take away the life of an unborn
child?
Answer 21. I have no personal views regarding the rights and
interests discussed in Planned Parenthood v. Casey that would prevent
me from following that precedent and any subsequent precedent in this
area.
Question 22. Again, I understand the state of the law on the
Supreme Court's interpretation on theissue of abortion, but I am
interested in your personal beliefs on the issue, do you personally
believe that an unborn child is a human being?
Answer 22. I have no personal views on this issue that would impede
my ability to adhere to applicable law in making judicial
determinations.
Question 23. Do you believe that the death penalty is
Constitutional?
Answer 23. Yes, the Supreme Court has held clearly in Gregg v.
Georgia, 428 U.S. 153 (1976), that the death penalty is Constitutional.
I have no views that would interfere with my ability to follow Supreme
Court precedent in any area.
Question 24. If you were a Supreme Court Justice, under what
circumstances would you vote to overrule a precedent of the Court?
Answer 24. If I were a Supreme Court Justice, I would approach such
a question with careful attention to the precedents, analytical methods
and criteria laid out in prior decisions of the Supreme Court with
respect to overruling precedents, as well as to the facts and
circumstances of the particular case or controversy before the Supreme
Court. I would be obligated to follow the Supreme Court's precedents on
the principle of state decisis and the circumstances under which
precedent of the Supreme Court may be overruled. The Supreme Court has
enumerated the factors to be considered when the Supreme Court is asked
to overrule a prior decision. The factors include whether the existing
precedent has proven unworkable, whether the existing precedent could
be modified or overruled without injuring seriously those who have
relied on that precedent, whether legal principles have so changed that
the prior precedent represents an abandoned doctrine, and whether the
factual predicate for the existing precedent has so changed that the
precedent has been rendered obsolete.
Question 25. Do you consider legislative intent and the testimony
of elected officials in debates leading up to the passage of an act?
And what weight do you give legislative intent?
Answer 25. If the plain language of a statute is ambiguous,
legislative history can be an important interpretive tool, indicating
legislative intent. Were I so fortunate as to be confirmed as a United
States District Judge, I would look to any available committee reports
relating to the language ultimately adopted and I would consider with
caution the statements of individual legislators in debates, because
those statements might not reflect consensus views of the legislation
at issue.
NOMINATIONS OF JOHNNIE B. RAWLINSON (U.S. CIRCUIT JUDGE); JOHN W.
DARRAH, PAUL C. HUCK, JOAN HUMPHREY LEFKOW, AND GEORGE Z. SINGAL (U.S.
DISTRICT JUDGES)
----------
THURSDAY, JUNE 15, 2000
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 4:27 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Grassley, presiding.
Also present: Senator Leahy.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Senator Grassley. It is a little bit early, but I would
like to get the meeting started since we have a member here to
participate and move things along, because the time to do
everything we have to do is mighty short.
I am Senator Chuck Grassley. I am a member of the Judiciary
Committee. Today the Judiciary Committee is holding its sixth
nomination hearing of the second session of the 106th Congress.
At this hearing we will consider the nomination of five
individuals who have been nominated by the President to be
Federal judges.
We will have two panels of witnesses this afternoon. The
first panel will consist of the sponsors of the nominees, who
will give brief statements on behalf of their nominees. The
second panel will consist of Circuit Court Nominee Johnnie B.
Rawlinson, of Nevada, who has been nominated for the seat on
the U.S. Circuit Court of Appeals for the Ninth Circuit, and
also consists of four district court nominees: John W. Darrah,
to be U.S. District Judge for the Northern District of
Illinois; Paul C. Huck, to be U.S. District Judge for the
Southern District of Florida; Joan Humphrey Lefkow, to be U.S.
District Judge for the Northern District of Illinois; and
George Z. Singal, to be U.S. District Judge for the District of
Maine.
Before we turn to the panels, I guess what I will normally
do now, since there is not a ranking minority member here to
make a statement, we will probably interrupt somewhere in the
panel for anybody that comes along to make a statement. But I
would suggest that, as I indicated in my opening remarks, the
necessity of kind of expediting this process because there is a
leadership meeting on the bankruptcy bill at 5:30 p.m., and I
have to be there because of my sponsorship of that and working
with Senator Torricelli, another member of this committee, to
get a bipartisan bill passed.
I would like to start with Senator Reid at this point.
STATEMENT OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF
NEVADA
Senator Reid. Senator Grassley, thank you very much. I know
how busy you are and I know how difficult it has been for
Senator Lott to get this hearing convened. I extend my
appreciation to Chairman Hatch, all members of this committee,
particularly Senator Leahy, for holding this hearing so that we
can report out some judges. I also have to attend that same
meeting as you.
Mr. Chairman, it is really an honor and a privilege for me
to introduce to this committee a woman by the name of Johnnie
Rawlinson. She has been an outstanding judge in the United
States District Court for the District of Nevada for the past 3
years, and has served with distinction.
I am proud to report to this committee she has the
unwavering support of the chief judge, Judge Howard McKibben,
who, by the way, is a Reagan appointee. She has the unqualified
support of Phil Pro, also a Reagan appointee, Lloyd George,
senior judge, also a Reagan appointee, as well as the other
judges who sit on the Federal bench in Nevada. Furthermore, in
addition to being an outstanding judge, Johnnie Rawlinson is an
outstanding person.
On the way over here, Mr. Chairman, I saw John Ashcroft. He
was speaking on the floor. I said to him, I am sorry you can't
be here because, as excited as Johnnie is about this
opportunity she has to be elevated to an appellate judge, she
was more excited this week when she learned that her daughter
had been accepted to the University of St. Louis Medical
School. This is the kind of a woman that she is. She is family-
oriented. She has three children: Monica, Tracy, and David. She
also enjoys the total support of her husband, Dwight, who is
retired from the United States military.
I have a full statement going into greater detail regarding
her academic qualifications and her involvement in the
community. I know, Mr. Chairman, that you are in a tremendous
hurry, and so I want to be as quick and to the point as I can.
I want you to know that in your experience as one of the
ranking members of the Judiciary Committee and one of the
senior members in the entire Senate, you have had many
witnesses appear before you, hundreds and hundreds of witnesses
in various settings. But you will never find anyone that is a
better person than Johnnie Rawlinson. She is moderate in her
views, she has a great academic background, and she would never
do anything to disgrace the court. I think this committee would
be well served to move this matter to the floor as quickly as
possible.
Thank you.
[The prepared statement of Senator Reid follows:]
Prepared Statement of Senator Harry Reid
Mr. Reid: Mr. Chairman, it is a distinct honor and privilege to
appear before this Committee in support if the nomination of Judge
Johnnie Rawlinson to be a Circuit Judge on the U.S. Court of Appeals
for the Ninth Circuit, and I would like to thank you and Senator Leahy
for holding this hearing.
For the past three years, Judge Johnnie Rawlinson has served the
U.S. District Court for the District of Nevada with distinction. I am
proud to report to this Committee that she has the unwavering support
of Chief Judge Howard McKibben and the other six judges who serve the
federal bench in Nevada. I have also spoken on numerous occasions with
my friend and fellow Nevadan, Proctor Hug, Jr., who, as you all know,
is the Chief Judge of the Ninth Circuit Court of Appeals. Chief Judge
Hug fully supports Johnnie Rawlinson's nomination and is eagerly
awaiting her investiture on his court.
In addition to the Judiciary, Judge Rawlinson enjoys widespread
support from the U.S. Attorney's Office and the federal Bar Association
in Nevada. Her tenure on the federal bench has also earned the respect
and admiration of federal, state and local law enforcement.
This support and respect has been bi-partisan * * * in fact, it has
been non-partisan. As I noted earlier, Chief Judge Howard McKibben,
appointed to the federal bench in 1984 by President Reagan, fully
supports Judge Rawlinson's nomination. While she is a Clinton nominee
(hopefully soon to be appointee), Sig Rogich, who is Governor Bush's
assistant and advisor in the State of Nevada, also supports and
endorses her nomination to the Ninth Circuit Court of Appeals. And I am
sure that my colleagues recall that Johnnie Rawlinson sailed through
this Committee with bi-partisan support three years ago when I
recommended her to be the first African-American woman ever to sit on
the federal bench in Nevada.
In fact, the only negative thing I can think about regarding
Johnnie Rawlinson's nomination to the Ninth Circuit is that the
District Court in Nevada will be losing one of its greatest assets.
Prior to her service on the federal district court, Judge Rawlinson
served the people of Nevada for eighteen yeas at the Office of the
District Attorney in Clark County, Nevada. She received her Bachelor of
Science degree, summa cum laude, from North Carolina A&T in 1974, and
her Juris Doctor degree from the University of the Pacific School of
Law in 1979.
Johnnie is the proud mother of three children, Monica, age 22,
Traci, age 17, and David, age 10. Her husband, Dwight, joins her here
today. I should also note that Monica has just been accepted to medical
school at the University of St. Louis. Needless to say, the Rawlinson
family has more than one reason to be proud today.
Again, Mr. Chairman, I would like to thank you and the committee
for holding this hearing. I would like to thank President Clinton for
following my recommendation to nominate Judge Rawlinson.
I look forward to her nomination coming before the full Senate in
the very near future so that she may be able to assume her duties on
the Ninth Circuit as quickly as possible.
Senator Grassley. I think I would like to call on Senator
Bryan so we stay with the same State at this particular point.
So if it doesn't upset anybody, I would go to Senator Bryan.
STATEMENT OF HON. RICHARD H. BRYAN, A U.S. SENATOR FROM THE
STATE OF NEVADA
Senator Bryan. Mr. Chairman, the last thing I would want to
occur with you presiding is for somebody to be upset because I
was recognized next. Therefore, I will simply associate myself
with the comments of my senior colleague.
Our nominee has a distinguished record prior to her
appointment and confirmation to the district court bench. She
has served with distinction in her new capacity. She would
provide balance and, in my judgment, a superb choice to serve
on the Ninth Circuit Court of Appeals.
I have known her for many years. She enjoys the respect of
the bar, of the community, and litigants who have been
privileged to appear before her. I would urge her confirmation,
and in the interest of time, may I request unanimous consent
that my statement be made a part of the record?
[The prepared statement of Senator Bryan follows:]
Prepared Statement of Senator Richard H. Bryan
Mr. Chairman, I want to thank you for allowing me the opportunity
to speak on behalf of Judge Johnnie Rawlinson regarding her nomination
as a judge to the Ninth Circuit United States Court of Appeals.
Judge Johnnie B. Rawlinson has dutifully served the State of Nevada
throughout her professional career. After graduating with distinction
from the University of the Pacific's McGeorge School of Law in 1979,
Judge Rawlinson relocated to Las Vegas to serve as a Deputy District
Attorney from 1980 to 1989. For the following six years, Judge
Rawlinson worked as the Chief Deputy District Attorney for Las Vegas,
and finally as an Assistant District Attorney from 1995 through 1998.
Over the past three years, Judge Rawlinson has served as a United
States District Judge for the District of Nevada. After being nominated
by President Clinton in 1998, Judge Rawlinson was confirmed in only
four months by the Senate, serving as a testament to her distinguished
and credible career as both an attorney and a magistrate. With more
than 20 years expertise in the field of law, combined with an
outstanding record of service in Nevada, I am confident that Judge
Rawlinson would be a welcome and laudable addition to the Ninth U.S.
Circuit Court of Appeals.
I believe that the Senate Judiciary Committee, and ultimately the
Senate as a whole, has the opportunity to create a positive effect in
the federal court system immediately. Due to the fact that the Ninth
Circuit's caseload is almost double the average number of cases handled
by any of the other twelve circuits, it is imperative that we confirm
competent and proven justices to the Ninth Circuit's bench in a timely
manner. I believe that with the recommendation of this committee on the
nomination of Judge Rawlinson, followed by the full Senate's
confirmation, we have the ability to bring about this type of
constructive result.
I am very pleased that the Senate Judiciary Committee has afforded
this hearing to take place, and I would like to encourage the committee
to approve Judge Rawlinson's nomination so that she can be allowed the
opportunity to serve as a United States Circuit Judge for the Ninth
Circuit in the near future.
Senator Grassley. Thank you.
Senator Reid and Senator Bryan, I didn't respond when
Senator Reid asked that the statement in its entirety be put in
the record, so at this point, let me say to all the members
that that will be just done automatically unless you indicate
otherwise.
Normally, maybe I shouldn't consult with people at the
panel, but I think it would be better if we go to Maine because
the two Congressmen are here from Maine. We will do that ahead
of Illinois. Is that OK?
OK; I am going to start with the senior Senator, Senator
Snowe.
STATEMENT OF HON. OLYMPIA J. SNOWE, A U.S. SENATOR FROM THE
STATE OF MAINE
Senator Snowe. Thank you, Mr. Chairman, and I want to thank
you and Chairman Hatch as well and members of the committee for
considering Mr. Singal's nomination so promptly here today and
for giving us an opportunity to appear before you. I am very
pleased to be here with the rest of Maine's congressional
delegation--my colleague Senator Collins, Congressman Baldacci,
and Congressman Allen to express unequivocal support for George
Singal for the U.S. District Court for the District of Maine.
Mr. Singal has a wide range of experience serving both as a
prosecutor and as a defense attorney, and has the enormous
respect of his colleagues, many of whom have expressed support
for his nomination. And, finally, just as telling, he enjoys
broad bipartisan support across the State of Maine.
Born in a refugee camp in Italy after his family fled
before the German invasion of his native Poland, he arrived in
Bangor, Maine, along with his sister and widowed mother, in
1949, and in the decades since, he has truly become a living
embodiment of the American dream.
After graduating summa cum laude from the University of
Maine in 1967 and becoming only the second recipient of the
highly prestigious award of the Tilden Scholarship--only the
second recipient of the award in the history of the university,
George briefly left our State to receive his law degree from
Harvard University 3 years later, but we have since forgiven
him for that minor transgression.
Indeed, not one to forget his roots, George immediately
returned to Maine to begin his legal career in Bangor, serving
as assistant county attorney for Penobscot County from 1971 to
1973, and then working his way into a partnership in a law
firm, a firm where he has remained to this day.
I should say, Mr. Chairman, that he has served in a variety
of professional committees, but his impeccable credentials and
his reputation for impartiality led to his appointment in 1993
to the Governor's Judicial Selection Committee by my husband,
Governor McKiernan, and today he chairs this prestigious
committee that assists in the appointment of judges across the
State under an Independent Governor, Angus King.
Throughout his career, Mr. Singal has displayed remarkable
legal acumen, thanks in large part to his thorough, reflective,
and balanced approach to his work, and this high degree of
professionalism has earned him well-deserved accolades,
including his selection to the American College of Trial
Lawyers, an award given to less than 1 percent of trial lawyers
nationwide, and his naming to the Best Lawyers in America, a
designation that was made by his colleagues in the legal
profession.
Let me just say in conclusion, Mr. Chairman, I am most
proud to be able to come before this committee today to
introduce to you a candidate of the caliber of Mr. George
Singal. His qualifications, his perspective, his intellect, and
his integrity will make him an outstanding judge, and I thank
you and the committee for your very strongest consideration.
Senator Grassley. Thank you, Senator Snowe.
Now, Senator Collins.
STATEMENT OF HON. SUSAN COLLINS, A U.S. SENATOR FROM THE STATE
OF MAINE
Senator Collins. Thank you very much, Mr. Chairman. I am
pleased to join in this bipartisan, bicameral show of support
for George Singal to be a district court judge in the State of
Maine. I want to thank the committee for the speed with which
it has acted on this nomination.
We in Maine were shocked and saddened last March by the
death of Judge Morton Brody, who had served both our State and
our Nation with such distinction. Recognizing the burden that
Judge Brody's death placed on the judicial system in Maine, the
Judiciary Committee has moved with remarkable speed to hold
this hearing today, and on behalf of the people of Maine, I
want to thank the committee for its consideration. It took an
extraordinary effort to bring this nomination to a hearing in
such a short time frame, and we do appreciate it.
My senior colleague, Senator Snowe, has described very
abley Mr. Singal's background, which, in addition to his
excellent qualifications for service on the Federal bench,
includes a life story that truly is the personification of the
American dream.
In following up on her comments, I would offer the
following observation: This committee sees nominees who arrive
before it from a variety of backgrounds, some from the
judiciary, some from the world of academia, and some from the
political world. Mr. Singal comes to you today from what those
in the profession often refer to as ``the trenches.'' He is a
courtroom lawyer, and has been his entire working life.
He comes to you today not with an agenda for reform or a
political philosophy to implement. He comes here simply with an
unwavering belief in the judicial system and the rule of law, a
belief that no doubt has been shaped by the over 800 cases that
he has tried to a verdict.
A great Maine lawyer described Mr. Singal as the consummate
attorney, a practitioner universally recognized to be among the
most competent trial lawyers in the State.
I would say, Mr. Chairman, that in all of my discussions
with my constituents on this nomination, not a single person
has mentioned anything negative about George Singal.
Repeatedly, lawyer and layman alike have praised his honesty,
his work ethic, and his citizenship. And for my part, I can
tell you that not only is George an outstanding attorney, he is
also a very good neighbor. He and I happen to live very close
to one another in Bangor.
I urge the committee to support the nomination of George
Singal to serve as Federal district judge, a position that he
would execute with integrity and distinction.
Thank you, Mr. Chairman.
Senator Grassley. Thank you, Senator Collins.
Now, Representative Baldacci, and then Representative
Allen.
STATEMENT OF HON. JOHN E. BALDACCI, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MAINE
Representative Baldacci. Thank you very much, Mr. Chairman.
First, I appreciate you holding this hearing, and I will
try to be as brief as possible. I want to thank my colleagues
from Illinois for letting us go at this time; I have
appreciated that very much.
I want to especially thank the two Senators, Senator Snowe
and Senator Collins, without whose help, we would not have had
the expeditious scheduling of this hearing. And I want to thank
them.
It is very unusual circumstances that have occurred in
Maine, and the delegation has reacted in a bipartisan,
bicameral way, as Senator Collins has pointed out, to be able
to move on this. While it is very unfortunate, the passing of
Judge Brody, I do think it is in true Maine tradition that we
do work together and try to advance this nomination.
You find in this individual, George Singal, unusual
characteristics. I remember when I was campaigning door to
door, knocking and visiting with his mother, and she sat down,
and I wanted to gain her support. And she had told me that, by
the way, even though, I didn't think so, her son was also
Italian. And she explained to me, yes, he was born in an
Italian refugee camp in Italy. And she explained the family
story. And every day at lunchtime he was there with his mother.
Every day he was working on his cases in court and his
community. And we are very, very fortunate to have an
individual of this caliber and judgment and judicial
temperament to serve in the District of Maine.
Again, I want to thank you for these hearings, and thank my
colleagues, because it is very unusual to have a nomination
move at this rate before this committee in the Congress. Thank
you for hearing this nomination today.
Senator Grassley. Thank you, Congressman.
Now, Congressman Allen.
STATEMENT OF HON. THOMAS H. ALLEN, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MAINE
Representative Allen. Thank you, Mr. Chairman. I, too, want
to thank you and the members of the committee for holding this
hearing so promptly and repeat my friend John Baldacci's thanks
to our two Senators for helping to assist us in this project of
bringing George Singal's nomination before you so quickly.
Mr. Chairman, before I became a Member of Congress, I was a
lawyer in Portland for 19 years, and I know the difference
between those judges who grasp a complicated argument quickly,
who are consistently thoughtful and balanced, and those who are
not quite as quick. And it is a great pleasure to be here to
recommend George Singal to the committee.
I have talked to members of the bench and bar in Maine
about George Singal, and their verdict is unanimous. There is
no better lawyer in the State of Maine. It is impossible to
overstate the respect with which the bench and bar holds George
Singal. He is always well prepared. He is consistently
thoughtful. He is a man of absolute integrity and of
consistently good judgment.
Other lawyers seek his advice when they need help, and they
hire him when they need representation. As Senator Snowe
mentioned, he was appointed to the Maine Judicial Selection
Committee by a Republican Governor, reappointed by an
Independent Governor, and the position of the Federal district
court is really a perfect fit for George Singal given his
experience. He has both a civil practice and a criminal
practice, and he is really the best we have in Maine for this
position.
I am completely confident that he will make an outstanding
judge on the Federal District Court of Maine, and I thank you
very much for his consideration.
Senator Grassley. Thank you very much. I thank you, Tom,
and I might suggest that we could make room now for Senator
Graham and Congressman Hyde--not Senator Graham. Senator Graham
will be here, but I meant Senator Mack.
Congressman Hyde, if you are here for Illinois, you may
want to come up now.
I should start with the senior Senator from Illinois.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Chairman Grassley; I
appreciate the fact you are having this hearing. You are
witnessing something which in the history of Illinois may be
unique. Senator Fitzgerald and I reached an agreement a little
over a year ago, when he was first elected, to cooperate in the
selection of Federal judges; We have done that. Today you have
before you two products of that cooperation.
I am happy to tell you that Judge John Darrah, who will be
introduced in detail by Senator Fitzgerald, was Senator
Fitzgerald's selection for the Federal district bench. I
wholeheartedly support Senator Fitzgerald's selection and
endorse it. Judge Darrah is a fine man and a fine jurist. I
think Judge Darrah will be an excellent addition to the Federal
bench.
I come today to also introduce Judge Joan Lefkow; Judge
Lefkow has served for 15 years as a magistrate in Chicago and
after that in 1997 was appointed as a bankruptcy judge. She
might be of some help to you, Mr. Chairman, when it comes to
that bankruptcy bill.
Senator Grassley. We need a lot of help. [Laughter.]
Senator Durbin. I know. She considered some 4,700 different
cases in that capacity and took on some of the most complicated
and challenging cases.
It was interesting when her name came up for nomination. A
number of judges and lawyers came forward and said that she has
an extraordinary grasp of the law and is very fair-minded on
the bench. I was more than happy to endorse her nomination to
the White House, and the President, I am sure, was very proud
to send the name to the Senate Judiciary Committee.
Judge Lefkow has a rare combination of intelligence,
professional experience, temperament, and devotion to public
service. She is going to be an excellent Federal judge. Judge
Lefkow has brought her husband with her, and I am sure there
will be an introduction of her family. She is very proud of
them.
I am happy to be here on behalf of and in wholehearted
support of these two nominees for the Federal District Court in
the Northern District of Illinois.
Senator Grassley. Thank you, Senator Durbin.
Now, Senator Fitzgerald.
STATEMENT OF HON. PETER G. FITZGERALD, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Fitzgerald. Thank you, Mr. Chairman, and I, too,
appreciate the speed with which this committee has acted and
held this hearing. I want to second the nomination of Joan
Lefkow, who was Senator Durbin's pick. I think she will make a
tremendous addition to the bench.
I am very pleased to introduce today to the committee my
selection from the State of Illinois, which was concurred in by
Senator Durbin, and that is Judge John Darrah from DuPage
County, IL. And we also have here Representative Henry Hyde,
who represents most of DuPage County.
Let me tell you a little bit about Judge Darrah. I
interviewed many applicants for this, my first pick to the
Federal Courts. I reviewed their background and qualifications,
I personally went through their decisions, and I personally
interviewed a number of them. After I met Judge Darrah, I was
convinced that he was the one that I wanted to be my first
pick.
I sensed right away he had a great judicial temperament. He
has a wonderful scholarly bent. In addition to having served as
a judge in DuPage County for the last 14 years, where he was
the presiding judge for a number of years of the Chancery
Division, he has also been an adjunct professor of law at
Northern Illinois University. He was twice voted the best
professor at NIU's law school. He has a background as well
working as both a deputy public defender and an assistant
State's attorney. He also has a wealth of experience in private
practice.
We are very proud to have him with us today. He is also
here with his lovely wife, Jeannine, and they both have a
number of children and grandchildren, too. So he is a wonderful
family man in addition.
So thank you very much, Mr. Chairman, and with that I will
turn it over to my good friend and colleague, Henry Hyde. And I
had the privilege of appearing before Henry over in the House
yesterday, and thank you for that.
Mr. Hyde. We treated you right, didn't we, Senator?
[Laughter.]
Senator Grassley. We now turn to the chairman of the House
Judiciary Committee, Congressman Hyde.
STATEMENT OF HON. HENRY HYDE, A U.S. REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ILLINOIS
Mr. Hyde. Thank you, Senator Grassley. I deeply appreciate
your holding this hearing. I don't have a prepared text, but I
am here in support of my friend, Judge Darrah, whom I have
known for many years. He brings a wealth of experience in all
phases of the law. Judge Darrah brings 14 years of experience
as a very successful, respected judge, and he brings a high
degree of humanity to the job of being a judge. He understands
people and their problems. He has a love affair with the law.
He is an excellent lawyer. He is fair, he is honorable, and he
is energetic. Judge Darrah is just the sort of person you would
like to have your case tried before because you would get a
real fair shake.
I think we are fortunate to have him, and I salute you and
I salute Senator Fitzgerald and Senator Durbin for bringing
this to this point. I hope you will decorate the bench in the
U.S. District Court in Chicago with Judge Darrah.
Thank you.
Senator Grassley. Thank you very much, Congressman Hyde.
Senator Leahy has come, and I had a statement to put in the
record for Senator Leahy. He may want to make----
Senator Leahy. Go ahead. Nobody can do it better than you,
Mr. Chairman.
Senator Grassley. I will put the statement in the record
for Senator Leahy, then.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Hon. Patrick Leahy, a U.S. Senator From the State
of Vermont
I am glad to see the Committee holding a hearing for judicial
nominees today. The Committee has reported only 19 nominees and held
what amount to four previous hearings all year on judicial nominations.
There is growing frustration around the country with this partisan
stall. So far this year there have been 99 judicial vacancies and the
Senate has acted to fill only 23 of them.
Governor Bush of Texas recently noted: ``The Constitution empowers
the president to nominate officers of the United States, with the
advice and consent of the Senate. That is clear-cut, straightforward
language. It does not empower anyone to turn the process into a
protracted ordeal of unreasonable delay and unrelenting investigation.
Yet somewhere along the way, that is what Senate confirmations became--
lengthy, partisan, and unpleasant. That has done enough harm, injured
too many good people, and it must not happen again.''
He proposed that presidential nominations be acted upon by the
Senate within 60 days. Of the 42 judicial nominations currently
pending, 26 have already been pending for more than 60 days without
Senate action. Already this Congress 78 nominees, including 52
eventually confirmed, have had to wait longer than 60 days for Senate
action. I urge the Senate to do better.
I am very glad to see that Judge Johnnie Rawlinson, nominated by
the President to a vacancy on the Ninth Circuit Court of Appeals, is
included in today's hearing. She currently serves as a distinguished
District Court Judge in Nevada. I hope that we will move quickly on
this nomination and on those of Barry Goode and James Duffy to fill
some of the longstanding vacancies that have plagued the Ninth Court.
Judge Rawlinson and these other nominees all enjoy the strong support
of their home state Senators.
The Committee is also proceeding on four District Court nominees:
Paul C. Huck, nominated to the District Court of Southern District of
Florida; Judge John W. Darrah, nominated to the District Court in the
Northern District of Illinois; Judge Joan Humphrey Lefkow, nominated to
the District Court of the Northern District of Illinois; and George Z.
Singal, nominated to the District Court in the District of Maine.
I am sorry more nominees were not included today, particularly
Court of Appeals nominees. This is another abbreviated list of nominees
and not the full complement of six to seven judicial nominees that we
normally consider. In light of the vacancies that are being perpetuated
and the number of highly qualified nominees pending before this
Committee, that is most regrettable.
One of our most important constitutional responsibilities as United
States Senators is to provide advice and consent on the scores of
judicial nominations sent to us to fill the vacancies on the federal
courts around the country. We recently made some progress as we
confirmed 16 new judges on May 24th. For that I thank the Democratic
Leader and the Majority Leader, my counterpart on this Committee,
Senator Hatch, and all those who worked with us to achieve Senate
action on those judicial nominees.
But before any Senator thinks that our work is done for the year,
let us take stock: We are only one-third of the way to the number of
judges confirmed by a Democratic majority in 1992 for President Bush
during his last year in office, and only half way to the levels of
confirmations achieved in 1984 and 1988. we have finally passed the
level of 17 confirmations achieved in 1996, the year before I became
the Ranking Member on the Judicial Committee. That low water mark is no
measure of success, however.
Today we face more judicial vacancies than when the Senate
adjourned in 1994. That means there are more vacancies across the
country than when the Republican majority took controlling
responsibility for the Senate in January 1995. Over the last six years
we have gained no ground in our efforts to fill longstanding judicial
vacancies that are plaguing the federal courts.
There remain 42 judicial nominations pending in the Judiciary
Committee, plus new nominations that the President is sending us every
week. I have challenged the Senate to regain the pace it met in 1998
when the Committee held 13 hearing and the Senate confirmed 65 judges.
That would still be one less than the number of judges confirmed by a
Democratic Senate majority in the last year of the Bush Administration
in 1992. Indeed, in the last two years of the Bush Administration, a
Democratic Senate majority confirmed 124 judges. It would take an
additional 67 confirmations this for this Senate to equal that total--
more confirmation than in any year since the Republican majority took
control of the Senate.
Over the last five years the Republican-controlled Senate confirmed
the following: 58 federal judges in the 1995 session; 17 in 1996; 36 in
1997; 65 in 1998; and 34 in 1999. By contrast, in one year, 1994, with
a Democratic majority in the Senate, we confirmed 101 judges. With
commitment and hard work many things are achievable.
Of the confirmations achieved this year, seven were nominations
that were reported last year and should have been confirmed last year.
That would have made last year's total slightly more respectable.
Instead, they were held over and inflate this year's numbers.
Moreover, the Republican Congress has refused to consider the
authorization of the additional judges needed by the federal judiciary
to deal with their ever increasing workload. In 1984, and again in
1990, Congress responded to requests by the Chief Justice and the
Judiciary Conference for needed judicial resources. Indeed, in 1990, a
Democratic majority in the Congress created scores of needed new
judgeships during a Republican administration.
Three years ago the Judicial Conference of the United States
requested that an additional 53 judgeships be authorized around the
country. Last year the Judicial Conference renewed its request but
increased it to 72 judgeships needed to be authorized in the omnibus
appropriations bill at the end of last year.
If Congress had timely considered and passed the Federal Judgeship
Act of 1999, S. 1145, as it should have, the federal judiciary would
have nearly 130 vacancies today. That is the more accurate measure of
the needs of the federal judiciary that have been ignored by the
Congress over the past several years and would place the vacancy rate
for the federal judiciary at 14 percent (128 out of 915). As it is, the
vacancy rate is almost 10 percent (65 out of 852) and has remained too
high throughout the five years that the Republican majority has
controlled the Senate.
Especially troubling is the vacancy rate on the Courts of Appeals,
which continues at over 11 percent (20 out of 179) without the creation
of any of the additional judgeships that those courts need to handle
their increased workloads.
Most troubling is the circuit emergency that had to be declared
more than seven months ago by the Chief Judge for the Court of Appeals
for the Fifth Circuit. I recall when the Second Circuit had such as
emergency two years ago. Along with the other Senators representing
States from the Circuit, I worked hard to fill the five vacancies then
plaguing my circuit. The situation in the Fifth Circuit is not one that
we should tolerate; it is a situation that I wished we had confronted
by expediting consideration of the nominations of Alston Johnson and
Enrique Moreno last year. I still hope that the Senate will consider
both of them this year.
I deeply regret that the Senate adjourned last November and left
the Fifth Circuit to deal with the crisis in the federal administration
of Justice in Texas, Louisiana and Mississippi without the resources
that it desperately needs. I look forward to our resolving this
difficult situation. I will work with the Majority Leader and the
Democratic Leader to resolve that emergency of the earliest possible
time.
With 20 vacancies on the Federal appellate courts across the
country and nearly half of the total judicial emergency vacancies in
the Federal courts system in our appellate courts, our Courts of
Appeals are being denied the resources that they need, and their
ability to administer justice for the American people is being hurt.
There continue to be multiple vacancies on the Ninth Circuit. I am
likewise concerned that the Fourth, Sixth and District of Columbia
Circuits are suffering from multiple vacancies.
I continue to urge the Senate to meet our responsibilities to all
nominees, including women and minorities, and look forward to action on
the nominations of Judge James Wynn, Jr. to the Fourth Circuit, Enrique
Moreno to the Fifth Circuit, and Kathleed McCree Lewis to the Sixth
Circuit. Working together the Senate can join with the President to
confirm well-qualified, diverse and fair-minded judges to fulfill the
needs to the federal courts around the country.
Having begun so slowly in the first five months of this year, we
have much more to do before the Senate takes its final action on
judicial nominees this year. We should be considering 20 to 40 more
judges this year. Having begun so slowly, we cannot afford to follow
the `Thurmond rule'' and stop acting on these nominees at the end of
the summer in anticipation of the presidential election. We must use
all the time until adjournment to remedy the vacancies that have been
perpetuated on the courts to the detriment of the American people and
the administration of justice. I urge all Senators to make the federal
administration of justice a top priority for the Senate for the rest of
this year.
I look forward to prompt and favorable action by the Committee on
the nominees included in today's hearing and look forward to the next
hearing, which I hope will be scheduled before the Fourth of July
Recess.
Senator Grassley. There aren't any other Congressman from
Illinois. We turn then to the State of Florida, and I invite
the senior Senator, Senator Graham from Florida, to give his
statement at this point.
STATEMENT OF HON. BOB GRAHAM, A U. S. SENATOR FROM THE STATE OF
FLORIDA
Senator Graham. Thank you, Mr. Chairman. And I have been
made aware of your time constraints, so I would like to request
to file my full introductory statement and I will summarize it.
Senator Grassley. That will be done. Thank you.
Senator Graham. Mr. Chairman, it is my pleasure to
introduce to the committee today Mr. Paul C. Huck. Mr. Huck, a
skilled veteran and respected practicing attorney, has been
nominated to serve as a Federal district judge in the very
active Southern District of Florida. He is joined today by his
wife, Donna--if I might ask if you would please stand?--his
son, Paul, Jr., daughter-in-law, Barbara Lagoa. Is Jim here?
Yes, and his brother, Jim Huck.
I have had the pleasure of knowing Paul for most of my
adult life. He is a graduate of the University of Florida. He
indicated his potential while he was still a student,
graduating second in his class at the University of Florida Law
School, and then closing the gap by having the highest score on
the Florida bar exam in the year he was admitted.
From that auspicious beginning, he has made many
contributions to the law, to his community, including having
served as an adjunct professor in litigation skills at the
University of Miami School of Law, has distinguished himself in
every aspect of his judicial, legal accomplishments. He was
recommended highly by the non-political screening committee
composed of a diverse group of Floridians, and then Senator
Mack and I both interviewed their recommendations and strongly
recommended to the President that he nominate Mr. Huck, which I
am pleased that he has done. And, Mr. Chairman, I urge your
expeditious and positive consideration of Paul Huck, who will
bring great distinction to the Federal judiciary.
[The prepared statement of Senator Graham follows:]
Prepared Statement of Senator Graham
Mr. Chairman, thank you for scheduling this hearing and for the
Committee's attention to the needs of Florida.
It is my pleasure to introduce Mr. Paul C. Huck. Mr. Huck, a
skilled, veteran and respected practicing attorney, has been nominated
to serve as a federal judge in the busy Southern District of Florida.
If confirmed, he would fill a vacancy created when U.S. District Court
Judge Kenneth Ryskamp took senior status.
Joining him today is Mr. Huck's wife, Donna, his son, Paul Jr. and
daughter-in-law Barbara Lagoa. Both Paul and Barbara are also attorneys
in Florida. Paul's daughter Caroline, a graduate student in education
at Vanderbilt University, was not able to join us.
Mr. Chairman, Mr. Huck's solid qualifications make him an ideal
candidate for service on the federal bench. Paul is a graduate of the
University of Florida, my alma mater, and earned his law degree from
that same institution in 1965. This impressive Gator was second in his
class at the University of Florida School of Law, but made up for that
second place finish by scoring higher than every other student who sat
for the State of Florida Bar Exam in 1965.
At an early age, Mr. Huck made a commitment to education. He worked
his way through his secondary, undergraduate and legal studies as a
service-station attendant, busboy, roofer, gardener, stock clerk, and
truck driver.
Recognizing the importance of a strong academic foundation, Paul
volunteers as a mentor and speaks annually to incoming law students on
the importance of ethics and professionalism. Since 1980, he has served
as an adjunct professor in the Litigation Skills Program at the
University of Miami School of Law.
As an attorney with a practice in commercial litigation, Mr. Huck
has gained a wide spectrum of experience--from real estte and
employment rights to intellectual property, maritime claims, and
insurance matters.
In Florida, Mr. Huck submitted his application to a non-political
screening committee comprised of a diverse group of Floridians, both
lawyers and non-lawyers. Senator Connie Mack and I interviewed leading
candidates, and jointly recommended Mr. Huck for nomination.
In summary, Mr. Huck is an intelligent, committed, well-respected,
and eminently qualifed candidate for the federal bench. I appreciate
the Committee's consideration of Mr. Huck's nomination and look forward
to working with you to fill this vacancy in Florida's southern
district.
Senator Grassley. Thank you, Senator Graham.
Now, Senator Mack.
STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM THE STATE OF
FLORIDA
Senator Mack. Thank you, Mr. Chairman. And, again, I
appreciate the committee's efforts. I think each time that I
come here I both thank you and remind you of the needs that we
still have in the State of Florida, and I thank you greatly for
having this hearing today and giving us an opportunity to
introduce Paul Huck to the committee.
Again, because of time, I will keep my comments brief.
I have known Paul Huck since our college days. We have not
had really contact over these last 35 years except that I was
constantly aware of his involvement in the law and his
background as a result of my brother, Dennis, and my brother,
Michael, who also attended the University of Florida Law
School, and who are very familiar with Paul and his
distinguished career.
On a very personal note, I would say I have run into very
few people, if any, who have the degree of intellect of Paul
Huck, combined with tremendous humility. This is an individual
who is highly skilled, well prepared, and I think everyone,
both in the committee and in the Senate, can be comfortable in
voting to confirm his nomination to be a Federal district court
judge.
So, again, I highly recommend Paul Huck to this committee,
and I thank the chairman.
Senator Grassley. Thank you, Senator Mack.
Are there any Members of the House of Representatives from
any of the States, including Florida, that we have heard from
that want to be heard?
[No response.]
Senator Grassley. Well, then, I would ask that the nominees
come forth, all of you, and obviously, I thank all of our
members and sponsors for their participation.
I will just, I guess, ask you to stand. Would you raise
your hand and I would give the oath. Do you swear that the
testimony you shall give in this hearing shall be the truth,
the whole truth, and nothing but the truth, so help you God?
Judge Rawlinson. I do.
Judge Darrah. I do.
Mr. Huck. I do.
Judge Lefkow. I do.
Mr. Singal. I do.
Senator Grassley. Thank you. Please be seated.
Senator Leahy. Trust me, Mr. Chairman, they all know what
it is like to give oaths.
Senator Grassley. OK, yes. I also think it is a little
ridiculous, as far as you folks have come, that we question
your integrity, but I guess that is part of the process.
At this point, then, starting with each of you from left to
right, before I ask you to give a statement, I would like to
have each of you introduce to the committee any family or
friends that you would like to have who are obviously here
because they are proud of the promotion and advancement that
you have been given in your profession.
Judge Rawlinson.
TESTIMONY OF JOHNNIE B. RAWLINSON, OF NEVADA, TO BE U.S.
CIRCUIT JUDGE FOR THE NINTH CIRCUIT
Judge Rawlinson. Thank you, Mr. Chairman. I would like to
introduce my husband of 24 years, Dwight, who has come with me
today.
Senator Grassley. Thank you, Dwight.
Now, Judge Darrah.
TESTIMONY OF JOHN W. DARRAH, OF ILLINOIS, TO BE U.S. DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
Judge Darrah. Thank you, Mr. Chairman. I would like to
introduce my wife, Jeannine, who is right behind me, who has
come here with us today. She and I have ten children, and in
the interest of expediency, it is well that they could not
attend today. [Laughter.]
Senator Grassley. OK; thank you.
Now, Mr. Huck.
TESTIMONY OF PAUL C. HUCK, OF FLORIDA, TO BE U.S. DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA
Mr. Huck. Thank you, Mr. Chairman. I would like to
introduce my wife, Donna, one more time.
Senator Grassley. OK.
Mr. Huck. Also, my son, Paul, Jr., is here, with his wife,
Barbara Lagoa, who both are practicing trial lawyers in Miami.
Senator Grassley. Welcome.
Mr. Huck. And my younger brother, Jim, and a friend with
him, Ms. Cassidy.
Senator Grassley. Thank you very much.
Now, Judge Lefkow.
TESTIMONY OF JOAN HUMPHREY LEFKOW, OF ILLINOIS, TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
Judge Lefkow. Thank you, Mr. Chairman. I may have the
largest attendance, so if I can look around and make sure I
don't miss anyone.
Senator Grassley. Yes.
Judge Lefkow. My husband, Michael Lefkow; my brother, John
Humphrey; my daughter, Margaret, one of four; my sister-in-law,
Susan Pigott; and my assistant, Krys Juleen.
Senator Grassley. Thank you, Judge.
Now, Mr. Singal.
TESTIMONY OF GEORGE Z. SINGAL, OF MAINE, TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF MAINE
Mr. Singal. Thank you, Mr. Chairman. I would like to
introduce to the committee my wife, Ruthanne; my daughter,
Jessica; her husband, Matthew, could not be here today; my son,
Samuel. My sister and her family could not be here, but they
are here in spirit.
Senator Grassley. Sure.
Mr. Singal. Thank you, Mr. Chairman.
Senator Grassley. Well, I know that everybody who is here
not only supports you very much today but are very proud of
what you are being appointed to and being considered for by the
Senate.
I would like to now, in the same order, ask if you have any
opening statements for the committee. You can give those in
summary. We would put your full statement, if you have one you
want to submit, in the record and ask you to be as concise as
you can in your opening comments.
Judge Rawlinson. Mr. Chairman, I would like to thank you
and the committee for having this hearing today, and that is
the sum and substance of my opening statement. Thank you.
Senator Grassley. Thank you.
Judge Darrah.
Judge Darrah. Likewise, Mr. Chairman, I appreciate the
committee's efforts in arranging this hearing, and I thank you.
Senator Grassley. Mr. Huck.
Mr. Huck. Mr. Chairman, I am deeply grateful for the
privilege to be here to answer your questions.
Senator Grassley. Now, Judge Lefkow.
Judge Lefkow. Thank you, Mr. Chairman.
I also wish to thank you very much for considering my
nomination, and thank you for your expeditious scheduling of my
hearing.
Senator Grassley. Mr. Singal.
Mr. Singal. I want to thank this committee, Mr. Chairman,
for the time they have given us. I know how busy the Senate is,
especially this week, and I appreciate the speed that this
committee has used in bringing us here today.
questioning by senator grassley
Senator Grassley. The first questions are going to be to
all the nominees, and they will be the same questions, so I
will ask it once--I will be glad to repeat it if it needs to be
repeated--and ask you from left to right to give your response
for the record.
The Supreme Court binds lower courts, and the precedents of
circuit courts are binding on district courts within the
particular circuit. Are you committed tofollowing the
precedents of higher courts faithfully and giving them full force and
effect even if you personally disagree with such precedents? For you,
that is going to be the Supreme Court. For the rest, it will be the
circuit court and the Supreme Court.
Judge Rawlinson.
Judge Rawlinson. Mr. Chairman, as a district court judge, I
have committed myself to following binding precedent, and I
will continue to do so if I am fortunate enough to be confirmed
as an appellate court judge.
Senator Grassley. Judge Darrah.
Judge Darrah. I am absolutely committed to those
principles, Senator.
Senator Grassley. Mr. Huck.
Mr. Huck. Mr. Chairman, you have my commitment I will
follow those precedents.
Senator Grassley. Judge Lefkow.
Judge Lefkow. Mr. Chairman, you also have my commitment to
those principles.
Senator Grassley. Mr. Singal.
Mr. Singal. I will follow binding precedent without
question.
Senator Grassley. OK; again, to each of you, you have
stated that, if confirmed, you would be bound by Supreme Court
precedent and the precedent of your respective circuit court of
appeals. There may be times, however, when you will be faced
with cases of first impression. What principles will guide you
or what methods will you employ in deciding cases of first
impression? Judge Rawlinson?
Judge Rawlinson. Mr. Chairman, if the case involves a
statute and the language of the statute is clear, I will, of
course, construe the statute in accordance with this language.
If the language is ambiguous, I would look to legislative
history in an effort to discern the intent of the legislators.
If it is a case that does not involve statutory construction, I
will look for analogous cases which could guide my decision.
Senator Grassley. Judge Darrah.
Judge Darrah. It sounds redundant. I would do the same
thing, Senator, look to the framing of the statute, statutory
history if the statute were ambiguous, and binding analogous-
case precedent if it were a non-statutory case of first
impression.
Senator Grassley. Mr. Huck.
Mr. Huck. I would concur in those opinions. If it were a
non-statutory case, I would then look to the precedent that was
most analogous to my situation and, as faithfully as I could,
apply that existing precedent as an analogy.
Senator Grassley. Judge Lefkow.
Judge Lefkow. Mr. Chairman, in my 17 years as a judge, I
find that there are few cases of first impression, at least in
the district courts. But in the instance where that arises, I
would do as others have well expressed, look to the plain
meaning of the statute, be guided by the decisions, of course,
of the Supreme Court, the appellate courts. And if that does
not tell me where to go, then I would consider the well-
reasoned decisions of other judges in Federal and State
jurisdictions.
Senator Grassley. Mr. Singal.
Mr. Singal. It is hard to improve on the prior answers. I
do believe that that situation arises very rarely in district
court. I would look to analogous decisions and to decisions of
other judges in district court.
Senator Grassley. Thank you.
Now, I am going to ask specific questions of some of you.
Judge Rawlinson, if a particular judge or court has a high rate
of reversal on appeal, either on the court of appeals or to the
Supreme Court, is that a problem? And if it is, what can and
should be done to remedy the problem?
Judge Rawlinson. There may be a number of reasons why there
is a high rate of reversal. If I were fortunate enough to be
confirmed as judge, I would make a commitment to make sure that
I followed the precedents that were put down by the Supreme
Court and adhere to the principles that have been time-honored.
Senator Grassley. Thank you.
Again, to Judge Rawlinson, in your view, to what extent, if
any, do the rights protected by the Constitution grow or shrink
with changing historical circumstances?
Judge Rawlinson. It is my view that the Constitution has
weathered the test of time and that the principles that are
embodied in the Constitution have been well interpreted in a
body of law that has been put down by the Supreme Court. And I
think that body of law should guide judges in their
decisionmaking today.
Senator Grassley. Under what circumstances do you believe
it appropriate for a Federal court to declare a statute enacted
by Congress unconstitutional? And are you aware of the recent
Supreme Court decision in United States v. Morrison and its
1995 decision, United States v. Lopez? And let me continue, and
I can repeat these, if necessary. Please explain to the
committee your understanding of those decisions and their
holdings regarding congressional power, because some
commentators have accused the Supreme Court of judicial
activism because of its decisions in those cases, and whether
or not you would agree with those commentaries.
Judge Rawlinson. My view of the law is that statutes are
entitled to a presumption of constitutionality, and Iwould
begin my review of a statute with that premise.
It would be difficult for me to say in a given circumstance
how a ruler might think that the canons of ethics in effect
would preclude me from doing that, but I do start with the
premise that a statute is presumed to be constitutional, and it
would be extraordinary circumstances that would persuade me to
declare a statute unconstitutional. I think it is incumbent
upon a judge to interpret a statute in such a way as to save it
as constitutional to the extent that that is possible to do so.
But each case depends on the facts of that case and the
precedent that binds the court in that particular instance.
Senator Grassley. If you think you have responded to this
part of the question, repeat it for me, please. But I brought
up the cases of United States v. Morrison and United States v.
Lopez as maybe just some examples. But we would like to get
some understanding of how you view those decisions and their
holding regarding congressional power more specific than what
you said about the presumption of congressional enactment being
constitutional, and particularly in regard to those decisions
that some have seen that as judicial activism and whether or
not you agree with that commentary.
Judge Rawlinson. Without having had the opportunity to
review the briefs, having heard the arguments of the attorneys,
and being intimately familiar with the facts of the case, I
would be not in a position to comment on whether or not the
Supreme Court in my view had become activist in those cases. I
don't feel that I have sufficient information regarding the
briefs and the factual predicates of those cases to make that
type of judgment at this point.
Senator Grassley. Moving on to another question for you,
Judge Rawlinson, in your view, is the use of race-, gender-, or
national origin-based preferences in such areas as employment
decisions, for instance, hiring, promotions or layoffs, college
admission and scholarship awards, and the awarding of
Government contracts, lawful under the Equal Protection Clause
of the 14th Amendment?
Judge Rawlinson. I think the Supreme Court has spoken
definitively in the Adarand case that race-based classification
and programs based thereon are subject to strict scrutiny and
that there must be a compelling state interest in order to
justify such programs and that any remedy that is based on race
classifications must be very narrowly tailored to correct
whatever remedy is being challenged, whatever remedy is being
posited. And I have no personal beliefs which would prevent me
from strictly adhering to the tenets set forth in the Adarand
decision.
Senator Grassley. In 1989, you authored an article about
the Supreme Court decision, City of Richmond v. Croson Company.
In that article, you analyzed the Croson case and concluded
that ``With detailed preparation and careful planning, remedial
set-aside programs need not be considered a dying tradition.''
Do you believe that that statement is accurate in light of
the Supreme Court subsequent decision in Adarand Construction
v. Pena? And I would like to have you explain your answer.
Judge Rawlinson. All right. The Adarand case I think
further elucidated the conditions under which a race-based
program could be sanctioned under the law, and I think that the
strict scrutiny that a program of that nature is subject to is
clarified in the Adarand decision and that any program that has
a race-based classification would have to meet those strict
compelling-interest considerations that are set forth in
Adarand. And if a case of that nature were brought to me for
review, I would be committed to judging it by the standards
that were set forth in Adarand and would apply the case as it
has been decided.
Senator Grassley. Before moving to Judge Darrah, I would
like to make a comment about the Ninth Circuit, not about your
nomination or not about anything you have said today, but just
to leave with you a thought, assuming that you will be on that
bench; that is, it bothers me as a member of this committee and
as a Member of Congress when I compare the Ninth Circuit with
other circuits around the country that we would have in a short
period of time that circuit have 28 out of 29 decisions
reversed by the Supreme Court. And that is why I have spent
considerable time asking nominees for the Ninth Circuit about
their views on precedents set by the Supreme Court.
Judge Darrah, in regard to the death penalty, do you
believe that the view of the death penalty taken by Justices
Brennan, Marshall, and Blackmun that the death penalty is
unconstitutional, notwithstanding the clear constitutional text
sanctioning it, is a permissible view of a Federal judge to
hold?
Judge Darrah. I believe the law of the land is well settled
in those majority opinions pronounced by the Supreme Court, and
I would follow them without hesitation, Senator.
Senator Grassley. Thank you.
Again, Judge Darrah, do you personally have any legal or
moral beliefs that would inhibit or prevent you from imposing a
death sentence in any criminal case that might come before you
as a Federal judge?
Judge Darrah. No.
Senator Grassley. Again, Judge Darrah, do you believe that
10-, 15-, or even 20-year delays between conviction of a
capital offender and execution is too long? And then let me ask
one other question associated. Do you believe thatonce Congress
or a State legislature has made the policy decision that capital
punishment is appropriate, then the Federal court should focus their
resources on resolving capital cases fairly and expeditiously?
Judge Darrah. Could I answer your questions in reverse
order?
Senator Grassley. Yes.
Judge Darrah. As to the second part, the answer is yes, I
do believe that.
As to the first part, rather than have my answer construed
as any comment on any specific pending case or recent case
where there has been that kind of delay, I would rather
generally comment that justice delayed, I believe, is justice
denied and that long, inordinate delays in the execution of any
court order I think is something that should be avoided.
On the other hand, in specific circumstances, everyone is
concerned with doing substantial justice between the parties,
and in certain circumstances that inherently causes delays. So
kind of an abstract answer to your question, I think it is in
the interest of every judicial system, certainly ours in the
United States, to quickly and efficiently enforce court orders.
Senator Grassley. OK; now, Mr. Huck, in regard to Federal
sentencing, as you know, the sentencing of criminal defendants
in Federal court is conducted under the Federal Sentencing
Guidelines. Some have argued that the guidelines do not provide
enough flexibility for sentencing judges, while others have
argued that the guidelines provide needed consistency in
sentencing.
What is your view of the Federal Sentencing Guidelines and
the application of those guidelines?
Mr. Huck. Mr. Chairman, I have not been a judge, so
obviously I have not sentenced, and I have not been involved in
the criminal side of litigation. However, since my nomination
has been brought over to the Senate, I have looked and read
extensively on the Sentencing Guidelines issues.
It is my belief that they are a reasoned approach to
uniformity and fairness in sentencing. I think it is
understandable that people are concerned that in one instance
one judge, because of his particular position, might give one
sentence for the exact same crime where in another State
another judge with a different view of things might give a
different sentence. I think that seems patently unfair to the
public. And, of course, I think it is important that the public
has confidence in the system.
I have read the guidelines, and it is my view that the
collective intelligence, the collective experience of those
people who comprise the Commission is far greater than any
single judge sitting anyplace in the United States. And I would
advise you, commit to this committee that I would follow those
guidelines.
Senator Grassley. Again, Mr. Huck, what is your view of
mandatory minimum criminal sentences? And would you have any
reluctance to impose or uphold them as a Federal judge?
Mr. Huck. I think my remarks would be pretty much the same
with regard to the Sentencing Guidelines, and yes, I would
impose those. I would follow the minimum standards.
Senator Grassley. Okay. Now I will go to Judge Lefkow, and
this would be in regard to adherence to precedent. What would
you do if you believed the Supreme Court or the court of
appeals had seriously erred in rendering a decision? Would you
nevertheless apply the decision, or would you apply your own
best judgment of the merits? And then I am going to ask you to
take, for example, in answering the question the Supreme Court
decision in United States v. Playboy Entertainment Group, Inc.,
which was decided May 22 this year, where the Court struck down
a provision of the 1996 Telecommunications Act that was
designed to protect children from exposure to sexually explicit
adult programming on cable television.
Before you answer, for myself I have been involved in
trying to make sure that what speech the First Amendment
doesn't protect, which obviously is child pornography and
obscenity, that we have a statute that makes that carried out.
For instance, one of the things that I got enacted in my early
years in the Senate was the federalization of the Ferber case
out of the New York court of appeals on some of these issues
of--or on the issue of child pornography as opposed to
obscenity.
Could you answer or do you want me to repeat that?
Judge Lefkow. I think I understand your question, and
please ask me again if I miss something.
As the mother of four daughters, I am very concerned about
the issues that you describe with respect to sexually explicit
material. As a district court judge, it is not committed to me
to take a different approach to or a different result to a
problem that would be within the decision of Playboy
Enterprises, that is, Playboy Enterprises would control my
decision if the facts were the same or analogous. So I cannot
take upon myself to impose a different view from what the
Supreme Court has stated.
Senator Grassley. I want to ask one now of you on criminal
procedure. Are you aware of the case recently argued before the
Supreme Court, Dickerson v. United States, which asked whether
a defendant's voluntary confession could be admitted into
evidence in the Government's case-in-chief under 18 U.S.C.
3501, even if the confession was not preceded by the warning
set forth in the Miranda case? Andexplain to the committee your
understanding of Miranda, Section 3501, and the proper role of the
Congress and the courts in establishing rules of evidence and
procedures for Federal court. And also please state whether you believe
the Miranda decision is an example of judicial activism.
Maybe start with the last part.
Judge Lefkow. The Miranda decision has been with us from, I
think, before I was even a lawyer, so it is sort of part of the
fabric of criminal jurisprudence. Whether it was an example of
judicial activism, I really don't think I am prepared to say.
Senator Grassley. Well, that might be legitimate because,
as I recall from reading the arguments before the Supreme Court
on this very case when it was about the Miranda appeal that is
up there now, the extent to which some judges or some of our
Supreme Court Justices, even the more conservative ones, were
asking since it has been law so long, should it be changed?
But I shouldn't have interrupted you. Proceed, please.
Judge Lefkow. All right. The case that----
Senator Grassley. I am not particularly trying to make it
easy for you when I said that. [Laughter.]
Judge Lefkow. If you would just bring me back to the first
part of your question, I would certainly appreciate it, Mr.
Chairman.
Senator Grassley. OK; are you aware of the case recently
argued before the Supreme Court entitled Dickerson v. United
States which asked whether a defendant's voluntary confession
could be admitted into evidence in the Government's case-in-
chief under 18 U.S.C. 3501, even if the confession was not
preceded by the warnings set forth in Miranda v. Arizona? And
then we are also asking you to explain to the committee your
understanding of Miranda, 3501, and the proper role of Congress
and the courts in establishing the rules of evidence and
procedure before the Federal court.
Judge Lefkow. All right. Well, you are asking me about an
exclusionary rule that was, I believe, initially judge-made,
and I believe you are saying that is 3501 has enacted----
Senator Grassley. Yes.
Judge Lefkow. All right. Thank you. The rules of evidence
and admissibility primarily are judge-made, though Congress has
a role, of course, because it is involved in the enactment of
rules. I think the proper role is that both the judiciary and
the Congress have a role in establishing rules of evidence,
including exclusionary rules.
In answer to your question about my familiarity with the
case, I am only familiar with it to the extent it has been in
the newspaper. I am sorry to say I haven't read the case.
Senator Grassley. Let me suggest that we will move on, and
there may be some follow-up to that that we would ask for you
to do in writing.
Now, Mr. Singal, would you please define judicial activism?
And in your view, is Roe v. Wade an example of judicial
activism?
Mr. Singal. I think judicial activism may be defined as
judges creating law. I am not sure whether Roe v. Wade is an
example of judicial activism. As far as I am concerned, Roe v.
Wade and its prodigy, the Casey decision, is binding upon me as
a district court judge. And under my oath as a district court
judge, assuming I can take it, I would be bound by that, and I
have no principles that would prevent me from following that
precedent as well as any other precedent binding upon a
district court judge.
Senator Grassley. The issue of guns, which is always a
difficult one, the Supreme Court, through the process of so-
called selective incorporation, has applied most if not all the
provisions of the Bill of Rights against the States. Thus, for
instance, the First Amendment, which was originally intended to
apply only to the Federal Government, has been applied to the
States. The Second Amendment, however, which protects the
rights of law-abiding citizens to own firearms in this country,
has not.
Do you believe the Second Amendment ought to be applied to
the States?
Mr. Singal. I think that is a very difficult question and
one I think that many higher courts have grappled with and
probably will grapple with. I have no personal opinion in that
regard. I would have to do a great deal of research and
hopefully be helped by the specifics of the case in terms of
the statutory language, the briefing of the party, and the
argument. I think that is an extraordinarily difficult case.
Senator Grassley. If most of the other provisions of the
Bill of Rights apply to the States, why shouldn't the Second
Amendment? And on what principal basis would it be appropriate
to apply almost all of the other provisions of the Bill of
Rights against the States but not the Second Amendment?
Mr. Singal. Again, Mr. Chairman, I think that is a very
difficult issue. One would hope that when that decision is
made, it would be made based on a great deal of legal research
and interpretation aided by a great deal of work done by the
advocating attorneys. I think it would be very difficult for me
to reach that decision here.
Senator Grassley. Now, obviously, as is the tradition at
most of these hearings, very few members come because we divide
up the work of so many hearings. So what we will do is leave
the record open until the close of business tomorrow for
additional follow-up questions, not that they will give you any
trouble, and most questions are not too numerous. Once in a
while somebody might suppose that a member is asked 25 or 30
questions of one of you as an effort to stall your nomination.
It seems to me that whatever questions are asked ought to be
respected by the nominees of the work of this committee and do
your best to get them done very quickly, because there has been
some needless delay just because somehow some nominee to the
bench has decided that maybe all those questions didn't have to
be answered. And there is no need to have yours slowed up by
the process of just not getting paperwork done. So I would
advise you to very expeditiously give the best answers you can
and get those back to us.
[The biographical information of Judge Rawlinson follows:]
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[The biographical information of Judge Darrah follows:]
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[The biographical information of Mr. Huck follows:]
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[The biographical information of Judge Lefkow follows:]
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[The biographical information of Mr. Singal follows:]
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Senator Grassley. I thank you very much, and the meeting is
adjourned.
[Whereupon, at 5:24 p.m., the committee was adjourned.]
Questions and Answers
----------
Responses of Johnnie B. Rawlinson to Questions From Senator Smith
Question 1. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with the
``advice and consent'' of the Senate. If a nominee for any federal
judgeship refuses to answer questions about a Constitutional issue,
should that individual be confirmed?
Answer 1. It is imperative that judicial nominees preserve the
integrity and impartiality of the judicial system by refraining from
expressing opinions on matters which may come before the court for
decision. Consideration of a nominee's analytical ability, career
experience, academic background, temperament and integrity may be
helpful to a Senator in determining the nominee's fitness to serve as a
federal judge. Of course, it is left to the reasoned determination of
each Senator whether to ``advise and consent'' to a particular
nomination.
Question 2. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If you were a member of the United
States Senate, would you agree that it is difficult to advise and
consent to a nominee when a candidate refuses to answer questions on
Constitutional issues?
Answer 2. Yes, it may be difficult, nevertheless the availability
of other information regarding the nominee's qualifications may enable
the Senate to exercise its responsibility under the advise and consent
clause of the Constitution.
Question 3. What is the purpose of the United Sates Senate in
holding hearings on nominees for the federal bench?
Answer 3. My understanding and experience of the purpose of these
hearings is to allow Senators an opportunity to delve into the
qualifications of nominees to the federal bench by exploring the
nominee's analytical ability, demeanor, prospective judicial
temperament and any other factors deemed relevant to the process.
Question 4. Is it possible for a Senator to advise and consent to a
nominee if the nominee simply refers to precedent without explaining
his or her legal analysis?
Answer 4. Yes, by referring to precedent, the nominee is
incorporating the legal analysis expressed in that precedent and
demonstrating a commitment to follow that legal analysis when faced
with analogous cases as a judge. This commitment, along with a
nominee's qualifications and understanding of the judicial function,
may help inform the decision to advise and consent to a nominee.
Question 5. How can I as a Senator advise and consent to a nominee
without answers to Constitutional questions?
Answer 5. The answers to Constitutional questions must be guided by
the Article III restraints on judges rendering advisory opinions and
the Code of Conduct requirement that a judge appear, and be impartial.
I am confident that the other information available to Senators will
enable the Senate to perform its constitutional obligation under
Article II.
Question 6. What questions are legitimate to ask a candidate
without the candidate prejudicing himself or herself?
Answer 6. A Senator should ask any question he or she deems
appropriate to gather information regarding a judicial nominee's
fitness for office. I do not think that questions focusing on the
nominee's career record, academic background, legal writings, and
understanding of the judicial function are areas that would serve to
prejudice the nominee.
Question 7. Are there any questions that you feel are off limits
for a Senator to ask?
Answer 7. No, there are not questions that are off limits for a
Senator to ask.
Question 8. If a U.S. District Judge or U.S. Court of Appeals judge
concludes that a Supreme Court precedent is flatly contrary to the
Constitution, are there any circumstances under which the Judge may
refuse to apply that precedent to the case before him or her?
Answer 8. No, even if a district judge or court of appeals judge
concluded that a Supreme Court case was in error, he or she would still
be bound by the oath of office to follow the Supreme Court precedent.
Question 9. If you were a Supreme Court Justice in 1856, what would
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.,) 393?
Answer 9. As I sit here today, it is impossible for me to state how
I would have ruled in the Dred Scott case in 1856. As a Supreme Court
Justice, my ruling would be based on a careful review of the briefs
filed in the case, the arguments of counsel, the precedent which
existed and the deliberations of the other justices.
Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) (1856),
the court apparently held, as you well know there were eight separate
opinions in the case, that black slaves were not citizens of the United
States. How should that precedent be treated by the courts today?
Answer 10. The Dred Scott case is no longer valid precedent, having
been overruled by the Thirteenth and Fourteenth Amendments to the
Constitution.
Question 11. If you were a judge in 1957, would you have been bound
by your Oath and would you have been mandated to follow the binding
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
Answer 11. If I were a judge in 1857, I would have been bound by my
oath and mandated to follow the binding precedent of Dred Scott v.
Sandford.
Question 12. If you were a Supreme Court Justice in 1896, what
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
Answer 12. It is impossible for me to state how I would have ruled
in 1896 in Plessy v. Ferguson without the benefit of reviewing the
briefs, participating in oral argument, analyzing existing precedents
and deliberating with the other judges.
Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority
of the court held as not a violation of the Fourteenth Amendment to the
Constitution a Louisiana statute which provided that all railway
companies provide ``equal but separate accommodations'' for black and
white passengers, imposing criminal penalties for violations by railway
officials. How should that precedent be treated by the Courts?
Answer 13. Plessy v. Ferguson is no longer valid precedent, having
been overruled by the Supreme Court in Brown v. Board of Education, 347
U.S. 483 (1954).
Question 14. If you were a Supreme Court Justice in 1954, what
would have held in Brown v. Board of Education, 347 U.S. 483 (1954)?
Answer 14. It is impossible for me to state how I would have ruled
in the Brown v. Board of Education case without the benefit of
reviewing the briefs filed by counsel, participating in oral argument,
analyzing existing precedent and deliberating with the other judges.
Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954)
the court held that the segregation of children in public schools
solely on the basis of race, even though the physical facilities and
other tangible factors may be equal, deprive the children of the
minority group of equal educational opportunities contrary to the
protections contained within the Fourteenth Amendment to the
Constitution. How should that precedent be treated by the Courts?
Answer 15. Brown v. Board of Education remains valid precedent and
should be followed by the courts.
Question 16. If you were a Supreme Court Justice in 1973, what
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
Answer 16. It is impossible for me to state how I would have ruled
in 1973 in Roe without the benefit of reading the briefs, participating
in oral argument, analyzing existing precedent and deliberating with
the other judges.
Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held
that a Texas statute which proscribed an abortion except when necessary
to save the life of the mother was a violation of the due process
clause of the Fourteenth Amendment as an unjustified deprivation of
liberty. Do you agree with the legal reasoning of the holding or of the
Justice Rehnquist dissent in that case?
Answer 17. In considering Supreme Court precedent, I do not
approach the rulings from the standpoint of whether I agree with them
or not. Rather, I review the cases to determine whether they apply to
the case before me, and if so, I must follow the precedent. As a
federal district court judge, I would be obligated to follow the ruling
in Roe, as modified by Planned Parenthood v. Casey, 505 U.S. 833
(1992). If I were confirmed as a circuit judge, I would continue to be
obligated to follow Supreme Court precedent.
Question 18. We understand the Supreme Court precedent, but what is
your personal view on the issue of abortion?
Answer 18. I have no personal view which would prevent me from
following the Supreme Court precedent established in Roe v. Wade, as
modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992).
Question 19. We understand the Supreme Court precedent, but what is
your personal view on the issue of the death penalty?
Answer 19. I have no personal views which would prevent me from
following Supreme Court precedents regarding the death penalty.
Question 20. We understand the Supreme Court precedent, but what is
your personal view on the issue of the Second Amendment to the
Constitution?
Answer 20. I have no personal views which would prevent me from
following Supreme Court precedents regarding the Second Amendment.
Question 21. In Planned Parenthood v. Casey, 505 U.S. 833 (1992),
the Supreme Court held that the government interest in preserving life
must be balanced against a mother's right of privacy and access to
abortion which may not be unduly burdened. Do you believe the ``right
to privacy'' includes the right to take away the life of an unborn
child?
Answer 21. I have no personal views regarding the issues decided in
Planned Parenthood v. Casey which would prevent me from following the
precedent established in that case and any subsequent precedent which
may be established by the Supreme Court.
Question 22. Again, I understand the state of the law on the
Supreme Court's interpretation on the issue of abortion, but I am
interested in your personal beliefs on the issue, do you personally
believe that an unborn child is a human being?
Answer 22. I have no personal views on this issue that would
prevent me from following established Supreme Court precedents.
Question 23. Do you believe that the death penalty is
constitutional?
Answer 23. I have no personal views that would prevent me from
following the Supreme Court precedent of Gregg v. Georgia, 428 U.S. 153
(1976) and subsequent precedent regarding the constitutionality of the
death penalty.
Question 24. If you were a Supreme Court Justice, under what
circumstances would you vote to overrule a precedent of the Court?
Answer 24. If I were a Supreme Court Justice, I would overrule a
precedent of the Court only after considered review and reflection upon
the applicable precedents and the particular facts before the court.
The Supreme Court has set forth the following factors which should be
weighed when the Supreme Court is asked to overrule a precedent:
whether the existing precedent has proven unworkable, whether the
existing precedent could be modified without serious injury to those
who have relied on the precedent, whether a change in legal principles
has resulted in the precedent being an abandoned doctrine, and whether
the factual underpinnings of the precedent have changed to the degree
that the precedent has been rendered obsolete. If I were a Supreme
Court Justice, I would weigh those factors carefully in reaching a
decision.
Question 25. Do you consider legislative intent and the testimony
of elected officials in debates leading up to passage of an act? And
what weight do you give legislative intent?
Answer 25. If a statute which is the subject of a case before me is
ambiguous, I will review the legislative history in an effort to
ascertain the legislative intent surrounding the passage of the
statute. Although I would consider the testimony of elected officials,
care must be taken to insure that statutes by individual legislators
represents the will of the majority of the elected officials.
Question 26. The 9th Circuit Court of Appeals has been described as
a rogue circuit by myself and other Senators. Do you believe that the
9th Circuit is an activist circuit or do you have another opinion of
the 9th Circuit? A related question, would you bring the 9th Circuit
into the mainstream of legal thought?
Answer 26. As a district court judge, I do not read the Ninth
Circuit opinions with a view toward characterizing them as activist
opinions, and I am bound to follow the precedent of the Ninth Circuit
and Supreme Court whether I agree with them or not. If I were fortunate
enough to be confirmed as a circuit judge, I would decide cases in
accordance with the precedent of the Supreme Court and thus presumably
within the mainstream of legal thought. I would also carefully read
Supreme Court precedent with particular attention to those cases where
the Supreme Court has reviewed Ninth Circuit decisions and otherwise
resolved divisions among the circuits. I would also carefully consider
petitions for rehearing en banc in those cases where there is a
difference of opinion among Ninth Circuit panels. I would faithfully
apply the Supreme Court jurisprudence regarding the deference
applicable to statutes, referenda and initiatives and construe them to
be constitutional to the maximum extent possible. I would also continue
to view the role of a judge as being limited to deciding only the case
that is before the court and, addressing constitutional issues only if
absolutely necessary. Additionally, I would continue to carefully
examine the jurisdiction of the court and not reach out to decide
issues that arenot properly before the court. On those issues properly
before the court, I would resolve them on the narrowest possible basis
and in accordance with the precedent of the Supreme Court. In addition,
I sat by designation on a Ninth circuit panel with Judges Kozinski and
Thomas and we were able to resolve fifteen cases relying on established
case law. None of those cases have been considered en banc, reversed or
the subject of certiorari to the Supreme Court.
Question 27. In April of 1998, you accepted your appointment to the
U.S. District Court for the District of Nevada. Do you believe that
just over two years on the federal bench is sufficient training to be
elevated to the 9th Circuit Court of Appeals?
Answer 27. Yes, I think that my experience as a district judge,
together with my academic background and career experiences have
prepared me sufficiently to perform the role of a circuit judge. I sat
by designation on the Ninth Circuit and experienced no difficulty in
preparing for or participating in the resolution of cases on appeal.
Throughout this country, there are many able circuit judges who never
served as district judges or on any bench prior to their appointment as
circuit judges.
Question 28. What is your current legal opinion on the
constitutionality of state affirmative action programs?
Answer 28. The United States Supreme Court in the case of Adarand
v. Pena, 515 U.S. 200 (1995), has definitively ruled that race-based
classifications in state affirmative action programs or any state
action are subject to strict scrutiny, must address a compelling state
interest and must be narrowly tailored to that compelling interest. I
have no personal views which would interfere with my ability to apply
the Supreme Court's holding in Adarand and any subsequent case
addressing the issue of affirmative action.
______
Responses of Johnnie B. Rawlinson to Questions From Senator Thurmond
Question 1. We frequently hear the argument that the courts act in
response to various social problems because the legislature has failed
to act on important issues. What is your view of courts acting in this
manner?
Answer 1. It is the function of the courts to interpret the laws
which have been enacted by the legislative branches of government.
Legislative inaction does not justify judicial intrusion into the
policymaking function reserved for the legislative branch.
Question 2. Do you have any personal objections to the death
penalty that would cause you to be reluctant to impose or uphold a
death sentence?
Answer 2. I have no personal objections to the death penalty that
would cause me to be reluctant to impose or uphold a death sentence.
Question 3. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a Federal judge?
Answer 3. Mandatory minimum sentences are an expression of the will
of Congress regarding the appropriate sentences for certain criminal
offenses. As a district court judge, I have imposed mandatory minimum
sentences, and I would not be reluctant to uphold them if I were
fortunate enough to be confirmed as a circuit judge.
Question 4. As you are well aware, the sentencing of criminal
defendants in Federal court is conducted under the Federal Sentencing
Guidelines. Some argue that the guidelines do not provide enough
flexibility for the sentencing judge, while others say the Guidelines
provided needed consistency. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 4. As a district court judge, I have applied the Federal
Sentencing Guidelines, which strike a balance between flexibility and
consistency, and I have found them to be very helpful in fashioning
appropriate sentences.
Question 5. As you know, the Prison Litigation Reform Act, was an
attempt to limit prisoner litigation and court involvement in prison
operations. Do you believe it places too many restrictions on the
ability of prisoners to make claims and for judges to remedy
Constitutional violations in the prison context?
Answer 5. No, the Prison Litigation Reform Act as upheld by the
Supreme Court in Miller v. French, 2000 WL 775572 (June 19, 2000),
provides additional statutory authority for weeding out frivolous
claims and ruling on the merits of legitimate claims, while leaving
intact the limited jurisdiction of federal courts to consider claims of
constitutional violations in the prison context. In Miller v. French,
the Supreme Court emphasized that prospective relief in prison
conditions cases should be narrowly drawn and minimally intrusive.
Question 6. As you are aware, Federal Rule of Civil Procedure 11
permits federal judges to impose sanctions against attorneys for
unwarranted claims or representations made in their pleadings. Some say
this rule is an important tool for judges, while others believe it
discourages litigants from testing the boundaries of existing law. What
is your opinion of Rule 11?
Answer 6. Rule 11 is a useful tool for judges to have available in
those cases where a litigant or attorney abuses the court process and
procedures. Rule 11 also preserves the opportunity to test the
boundaries of existing law so long as the claims are warranted by
existing law or grounded in a non-frivolous argument for a change in
the law. While the sanctions provided for in Rule 11 should be used
sparingly, they should be used without hesitation when necessary to
prevent or prohibit vexatious litigation.
______
Responses of Johnnie B. Rawlinson to Questions From Senator Hatch
Question 1. If a particular judge or court has a high rate of
reversal on appeal, either to the Court of Appeals or the Supreme
Court, is that a problem? If it is, what can and should be done to
remedy that problem?
Answer 1. Yes, a high rate of reversal is a cause for concern. If
presented with that circumstance, a judge or court should carefully
read the overruling precedent with a view toward correcting the
erroneous ruling(s) at the earliest opportunity. The judge or court
should also make a concerted effort to focus on only the issues before
the judge or court, judiciously applying precedent to resolve cases on
the narrowest basis possible. Finally, the judge or court should
conscientiously refrain from reaching out to decide matters which are
not before the court.
Question 2. In your view, to what extent, if any, do the rights
protected by the Constitution grow or shrink with changing historical
circumstances?
Answer 2. No, rights protected by the constitution do not grow or
shrink with changing historical circumstances. However, the Supreme
Court may be called upon to interpret those rights within a changed
historical setting, such as changes in technology like the telephone.
The Supreme Court's interpretation of those rights constitute precedent
which lower courts are bound to follow.
Question 3. Under what circumstances do you believe it appropriate
for a federal court to declare a statute enacted by Congress
unconstitutional?
Answer 3. A federal court should always begin its statutory
analysis keeping in mind the strong presumption of constitutionality to
which Congressional enactments are entitled. Every effort should be
made to interpret the statute in a way that would result in a finding
of constitutionality. Adherence to these well established statutory
construction precepts would result in a finding of unconstitutionality
only in rare and exceptional circumstances.
Question 4. Please describe in reasonable detail the Supreme
Court's recent decision in United States v. Morrison, and its 1995
decision United States v. Lopez, explaining to the Committee your
understanding of those decisions, and their holdings regarding
congressional power. Some commentators have accused the Supreme Court
of judicial activism because of its decisions in those cases. Do you
agree? Please explain.
Answer 4. In United States v. Morrison, 120 S.Ct. 1740 (2000), the
Supreme Court invalidated a statute which created a federal civil cause
of action for victims of sexual assault. In United States v. Lopez, 514
U.S. 549 (1995), the Supreme Court struck down a statute which made it
a crime to knowingly possess a firearm within a school zone. The
Supreme Court found that both statutes exceeded Congress' power to
regulate under the commerce clause. The Supreme Court opined that
Congress has the power to regulate channels of interstate commerce or
instrumentalities of interstate commerce. However, there must be a
substantial effect upon interstate commerce to trigger the commerce
clause regulatory authority if the subject of the legislation is
intrastate activity. As a lower court judge, my practice is not to
analyze the decisions of the Supreme Court, such as Lopez and Morrison,
with the aim of characterizing them in terms of judicial activism, but
rather I read them to ascertain their holdings and to understand their
application to particular cases. They constitute binding precedent
which I must follow whether I agree with them or not.
Question 5. In your view, is the use of race, gender, or national
origin-based preferences in such areas as employment decisions (hiring,
promotion, or layoffs), college admissions and scholarship awards, and
the awarding of government contracts, lawful under the Equal Protection
Clause of the 14th Amendment. Please explain.
Answer 5. The United States Supreme Court in the case of Adarand v.
Pena, 515 U.S. 200 (1995), has definitively ruled that race or national
origin-based classifications in state programs or any state action are
subject to strict scrutiny, must address a compelling state interest
and must be narrowly tailored to that compelling interest. In United
States v. Virginia, 518 U.S. 515 at 533 (1996), the Supreme Court
articulated an intermediate scrutiny standard for analyzing gender
based programs. I hold no personal views which would interfere with my
ability to apply the Supreme Court's holding in Adarand v. Pena, United
States v. Virginia and any subsequent case addressing this area.
Question 6. Do you believe that the view of the death penalty taken
by Justices Brennan, Marshal, and Blackburn--that the death penalty is
unconstitutional notwithstanding the clear constitutional text
sanctioning it--is a permissible view for a judge to hold?
Answer 6. The Supreme Court has upheld the constitutionality of the
death penalty in Gregg v. Georgia, 428 U.S. 153 (1976). I hold no
personal views which would affect my ability to follow this precedent
and any subsequent precedent regarding the death penalty.
Question 7. Do you personally have any legal or moral beliefs that
would inhibit or prevent you from imposing a death sentence in any
criminal case that might come before you as a federal judge? Please
explain.
Answer 7. No, I personally have no legal or moral beliefs that
would inhibit or prevent me from imposing a death sentence.
Question 8. Do you believe the 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long?
Answer 8. Yes, inordinate delay compromises the integrity of the
justice system.
Question 9. Do you believe that once Congress or a State
legislature has made the policy decision that capital punishment is
appropriate, then the federal courts should focus their resources on
resolving capital cases fairly and expeditiously.
Answer 9. Yes, I believe that once the policy decision has been
made, it is the role of the judge to resolve capital cases fairly and
expeditiously.
Question 10. The sentencing of criminal defendants in federal court
is conducted under the federal Sentencing Guidelines. Some have argued
that the Guidelines do not provide enough flexibility for the
sentencing judge, while others have argued that the Guideline provide
needed consistency in sentencing. What is your view of the federal
Sentencing Guideline and the application?
Answer 10. As a district court judge, I have applied the Federal
Sentencing Guidelines, which strike a balance between flexibility and
consistency, and I have found them to be very helpful in fashioning
appropriate sentences.
Question 11. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a federal judge?
Answer 11. Mandatory minimum sentences are an expression of the
will of Congress regarding the appropriate sentences for certain
criminal offenses. As a district court judge, I have imposed mandatory
minimum sentences without reluctance, and I would not be reluctant to
uphold them if I were fortunate enough to be confirmed as a circuit
judge.
Question 12. What would you do if you believed the Supreme Court or
Court of Appeals had seriously erred in rendering a decision? Would you
nevertheless apply that decision? Or would you apply your own best
judgment of the merits? Take, for example, the Supreme Court's recent
decision in United States v. Playboy Entertainment Group Inc. where the
Court stuck down a provision of the 1996 Telecommunications Act that
was designed to protect children from exposure to sexually explicit
adult programming on cable television.
Answer 12. Even if I believed the Supreme Court or Court of Appeals
had seriously erred in rendering a decision, I would still be bound by
my oath of office to follow precedent. I hold no views regarding any
Supreme Court precedent, including Playboy, which prevent me from
following the precedent of the higher court.
Question 13. Please describe in reasonable detail your
understanding of the case recently argued before the Supreme Court
entitled Dickerson v. United States, which asked whether a defendant's
voluntary confession could be admitted into evidence in the
Government's case in chief under 18 U.S.C. 3501, even if the confession
was not preceded by the warnings set forth in Miranda v. Arizona?
Please explain to the Committee your understanding of Miranda, section
3501, and the proper role of the Congress and the Courts in
establishing rules of evidence and procedure for federal courts. Also,
please state whether you believe the Miranda decision is an example of
judicial activism.
Answer 13. Miranda v. Arizona is binding precedent on the lower
courts unless and until the Supreme Court overrules or modifies that
decision. Dickerson involves a conflict between the Supreme Court's
decision in Miranda to require specific warnings before a confession
may be admissible and the Congress' decision to impose a rule, 18
U.S.C. Sec. 3501, which requires instead a consideration of the
totalicity of the circumstances surrounding the confession. Whatever
the outcome of the Dickerson case, the Supreme Court's decision will
constitute precedent which I, as a lower court judge, am obligated to
follow. As a lower court judge, my practice is not to analyze the
decisions of the Supreme Court, including Miranda, with the aim of
characterizing them in terms of judicial activism, but rather I read
them to ascertain their holdings and to understand their application to
particular cases.
Question 14. Please define judicial activism. In your view, is Roe
v. Wade an example of judicial activism?
Answer 14. Judicial activism is considered by some to be injection
of one's personal views into decisions or reaching out to decide
matters which are not properly before the court. As a lower court
judge, my practice is not to analyze the decisions of the Supreme
Court, including Roe as modified as Casey, with the aim of
characterizing them in terms of judicial activism, but rather I read
then to ascertain their holdings and to understand their application to
particular case. Roe v. Wade, as modified by Planned Parenthood v.
Casey, 505 U.S. 833 (1992), is binding Supreme Court precedent which I
am obligated to follow.
Question 15. The Supreme Court, through a process of so-called
selective incorporation, has applied most if not all, of the provisions
of the Bill of Rights against the States. Thus, for instance, the First
Amendment, which originally was intended to apply only to the federal
government, has been applied to the States. The Second Amendment,
however, which protects the rights of law-abiding citizens to own
firearms in this country, has not. Do you believe that the Second
Amendment ought to be applied to the States?
Answer 15. I leave to the Supreme Court the determination regarding
which of the Bill of Rights provisions are to be applied to the States
based on incorporation jurisprudence. As a lower court judge, I am
obligated to follow Supreme Court precedent.
Question 16. If most of the other provisions of the Bill of Rights
apply to the States, why shouldn't the Second Amendment? On what
principled basis would it be appropriate to apply almost all of the
other provisions of the Bill of Rights against the States, but not the
Second Amendment?
Answer 16. Whether any or all of the provisions of the Bill of
Rights are applied to the states is a question for the Supreme Court to
resolve. Perhaps it is a matter of the Second Amendment incorporation
issue not having been presented to the Supreme Court in a posture where
it is ripe for review. In any event, I hold no personal views which
would prevent me from following Supreme Court precedent on this issue.
Question 17. The precedents of Circuit Courts are binding on the
district courts within the particular Circuit. Are you committed to
following the precedents of higher courts faithfully and giving them
full force and effect, even if you personally disagree with such
precedents?
Answer 17. I am absolutely committed to following the precedents of
higher courts faithfully and giving them full force and effect, even if
I personally disagreed with a precedent.
Question 18. You have stated that, if confirmed, you could be bound
by Supreme Court precedent and the precedent of the Circuit Court of
Appeals over your district or circuit. There may be times, however,
when you will be faced with cases of first impression. What principles
will guide you, or what methods will you employ, in deciding cases of
first impression?
Answer 18. In the rare case of first impression, if I were
interpreting a statute and the language of the statute were clear, I
would decide the case based on the plain meaning of the statute. If the
statutory language were ambiguous, I would review the legislative
history in an effort to ascertain the intent of the legislature.
Finally, I would look to analogous cases for guidance.
______
Responses of John W. Darrah to Questions From Senator Thurmond
Question 1. We frequently hear the argument that the courts act in
response to various social problems because the legislature has failed
to act on important issues. What is your view of courts acting in this
manner?
Answer 1. Such an approach is contrary to the well established
principle of separation of powers. It is absolutely improper for a
Court to act in any manner which involves the function of the
legislative branch of government.
Question 2. Do you have any personal objections to the death
penalty that would cause you to be reluctant to impose or uphold a
death sentence?
Answer 2. I have no personal objections to the death penalty which
would cause me to be reluctant to impose or uphold a death sentence
which was justified under the facts and law of the case.
Question 3. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a Federal judge?
Answer 3. The enactment of these statutes is a valid exercise of
legislative authority. I would have no reluctance in imposing or
upholding mandatory minimum criminal sentences.
Question 4. As you are well aware, the sentencing of criminal
defendants in Federal court is conducted under the Federal Sentencing
Guidelines. Some argue that the Guidelines do not provide enough
flexibility for the sentencing judge, while others say the Guidelines
provided needed consistency. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 4. The Federal Sentencing Guidelines do provide a general
uniformity in the sentences imposed for various criminal misconduct.
The consistency which is achieved through the Guidelines assures that
all will receive equal treatment under the law. If I were confirmed as
a Federal District Court Judge, I would have no reluctance to follow
the Guidelines.
Question 5. As you know, the Prison Litigation Reform Act, which
was an attempt to limit prisoner litigation and court involvement in
prison operations. Do you believe that the Act has been beneficial to
the legal system or do you believe it places too many restrictions on
the ability of prisoners to make claims and for judges to remedy
Constitutional violations in the prison context?
Answer 5. The Prison Litigation Reform Act has been found to be a
valid exercise of the legislative power, and I would apply the law as
it is written in any such cases that come before me.
Question 6. As you are aware, Federal Rule of Civil Procedure 11
permits federal judges to impose sanctions against attorneys for
unwarranted claims or representations made in their pleadings. Some say
this rule is an important tool for judges, while others believe it
discourages litigants from testing the boundaries of existing law. What
is your opinion of Rule 11?
Answer 6. Federal Rule 11 permits federal judges to impose
sanctions against attorneys for a prohibited conduct in the proper
case. However, the Rule is written to permit attorneys to argue in good
faith for an extension of existing law based on sound principles of
jurisprudence.
____
Responses of John W. Darrah to Questions From Senator Smith
Question 1. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If a nominee for any federal
judgeship refuses to answer questions about a Constitutional issue,
should that individual be confirmed?
Answer 1. A nominee should try to answer all questions of a
Senator, although a judicial candidate is obligated to preserve the
integrity of the judicial position sought by avoiding answering
questions in any fashion which may suggest the nominee has prejudged an
issue or has personal feelings which would interfere with the nominee's
ability to be fair and impartial. It is up to the Senator to determine
the circumstances under which he will vote to confirm a nominee.
Question 2. Article II, Section 2 of the constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If you were a member of the United
States Senate, would you agree that it is difficult to advise and
consent to a nominee when a candidate refuses to answer questions on
Constitutional issues?
Answer 2. Yes, however, a Senator can seek assurances that the
nominee is aware of and will discharge the duties imposed on a federal
judge pursuant to the Constitution of the United States. These duties
include respecting the principles of stare decisis and separation of
powers.
Question 3. What is the purpose of the United States Senate in
holding hearings on nominees for the federal bench?
Answer 3. My understanding is that the Senate holds hearings on
nominees for the federal bench to determine their qualifications,
including whether a candidate respects the Constitution's limitations
on judicial power and whether the candidate has sufficient professional
experience, ability and integrity to perform the functions required of
the federal judiciary.
Question 4. Is it possible for a Senator to advise and consent to a
nominee if nominee simply refers to precedent without explaining his or
her legal analysis?
Answer 4. Yes, in my view, it is possible to advise and consent to
a qualified nominee who refers to precedent on legal questions. A
nominee can demonstrate an understanding of legal issues by reference
to past holdings of higher courts, which implies that the nominee would
follow the legal analysis of that precedent.
Question 5. How can I as a Senator advise and consent to a nominee
without answers to Constitutional questions?
Answer 5. A Senator may advise and consent to a nominee by seeking
assurances that the nominee is aware of and will discharge the duties
imposed on a federal judge pursuant to the Constitution of the United
States. These duties include respecting the principles of stare decisis
and separation of powers. A Senator may also exercise his
responsibilities under the advice and consent clause by assessing
whether the candidate has sufficient professional experience, ability
and integrity to perform the functions required by the federal
judiciary.
Question 6. What questions are legitimate to ask a candidate
without the candidate prejudicing himself or herself?
Answer 6. A Senator may ask any questions he or she deems
appropriate. Questions that would not be likely to prejudice a
candidate include those regarding the candidate's professional and
personal background to determine if the candidate has the necessary
intelligence, education, training, experience, integrity and work ethic
to perform the duties of a federal judge. Other such questions include
those intended to determine whether the candidate appreciates and will
discharge the duties and obligations imposed upon the federal judiciary
by the Constitution and other laws.
Question 7. Are there any questions that you feel are off limits
for a Senator to ask?
Answer 7. No, a Senator may ask any questions he or she deems
appropriate.
Question 8. If a U.S. District Court Judge or U.S. Court of Appeals
judge concludes that a Supreme Court precedent is flatly contrary to
the Constitution, are there any circumstances under which the Judge may
refuse to apply that precedent to the case before him or her?
Answer 8. No, a U.S. District Court judge or a U.S. Court of
Appeals judge is bound to follow a Supreme Court precedent if it is
applicable to the case, regardless of the judge's own conclusion that
the higher court erred.
Question 9. If you were a Supreme Court Justice in 1856, what would
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
Answer 9. I am not able to conclude how I would have held in Dred
Scott v. Sandford if I were a Justice of the Supreme Court in 1856. To
responsibly discharge the duties of a Supreme Court Justice, one would
have to read the briefs, listen to the arguments of counsel, and
discuss the case with the other Justices in conference.
Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1856), the court apparently held, as you well know there were eight
separate opinions in the case, that black slaves were not citizens of
the United States. How should that precedent be treated by the courts
today?
Answer 10. The decision in Dred Scott v. Sandford has been
overruled by the Thirteenth and Fourteenth Amendments to the
Constitution. The case has no binding precedential value and is of no
force and effect today.
Question 11. If you were a judge in 1857, would you have been bound
by your Oath and would you have been mandated to follow the binding
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
Answer 11. If I were a judge in 1857, I would have been obligated
to follow the then binding precedent of the decision in Dred Scott v.
Sandford.
Question 12. If you were a Supreme Court Justice in 1896, what
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
Answer 12. I am not able to conclude how I would have held in
Plessy v. Ferguson if I were a Justice of the Supreme Court in 1896. To
responsibly discharge the duties of a Supreme Court Justice, one would
have to read the briefs, listen tot he arguments of counsel, and
discuss the case with the other Justices in conference.
Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority
of the court held as not a violation of the Fourteenth Amendment to the
Constitution a Louisiana statute which provided that all railway
companies provide ``equal but separate accommodations'' for black and
white passengers, imposing criminal penalties for violations by railway
officials. How should that precedent be treated by the Courts?
Answer 13. Plessy v. Ferguson has been overruled by subsequent
Supreme Court decisions, such as Brown v. Board of Education. It is not
binding case precedent and is of no force and effect today.
Question 14. If you were a Supreme Court Justice in 1954, what
would you have held in Brown v. Board of Education, 347 U.S. 483
(1954)?
Answer 14. I am not able to conclude how I would have held in Brown
v. Board of Education if I were a Justice of the Supreme Court in 1954.
To responsibly discharge the duties of a Supreme Court Justice, one
would have to read the briefs, listen to the arguments of counsel, and
discuss the case with the other Justices in conference.
Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954),
the court held that the segregation of children in public schools
solely on the basis of race, even though the physical facilities and
other tangible factors may be equal, deprive the children of the
minority group of equal educational opportunities contrary to the
protections contained within the fourteenth Amendment to the
constitution. How should that precedent be treated by the Courts?
Answer 15. The case of Brown v. Board of Education has not been
overruled, and the law as pronounced by the Supreme Court in that case
is binding case precedent on all lower courts.
Question 16. If you were a Supreme Court Justice in 1973, what
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
Answer 16. I am not able to conclude how I would have held in Roe
v. Wade, if I were a Justice of the Supreme Court in 1973. To
responsibly discharge the duties of a Supreme Court Justice, one would
have to read the briefs, listen to the arguments of counsel, and
discuss the case with the other Justices in conference.
Question 17. In Roe v. Wade, 410 U.S. 113 (1873) the court held
that a Texas statue which proscribed an abortion except when necessary
to save the life of the mother was a violation due process clause of
the Fourteenth Amendment as an unjustified deprivation of liberty. Do
you agree with the legal reasoning of the holding or of the Justice
Renquist dissent in that case?
Answer 17. The holding of Roe v. Wade,, as modified and explained
by Casey, has not been overruled and is still binding precedent. If I
were confirmed to serve as a federal judge, I would perform my
obligation and apply that precedent. I have no personal view which
would prevent me from doing so.
Question 18. We understand the Supreme Court precedent, but what is
your personal view on this issue of abortion?
Answer 18. I have no personal view or attitude which would prohibit
me from discharging my duty to apply Supreme Court precedent regarding
the issue of abortion.
Question 19. We understand the Supreme Court precedent, but what is
your personal view on the issue of the death penalty?
Answer 19. I have no personal view or attitude which would prohibit
me from discharging my duty to apply Supreme Court precedent regarding
the issue of the death penalty.
Question 20. We understand the Supreme Court precedent, but what is
your personal view on the issue of the Second Amendment to the
Constitution?
Answer 20. I have no personal views regarding the Second Amendment
which would prevent me from applying Supreme Court opinions regarding
this issue.
Question 21. In Planned Parenthood v. Casey, (505 U.S. 833 (1992))
the Supreme Court held that the government interest in preserving life
must be balanced against a mother's right of privacy and access to
abortion which may not be unduly burdened. Do you believe the ``right
to privacy'' includes the right to take away the life of an unborn
child?
Answer 21. The Supreme Court opinion, in the case of Planned
Parenthood v. Casey, is binding precedent. I have no personal views
which would prevent me from discharging my obligation to apply the
holding of this case.
Question 22. Again, I understand the state of the law on the
Supreme Court's interpretation on the issue of abortion, but I am
interested in your personal beliefs on the issue, do you personally
believe that an unborn child is a human being?
Answer 22. I have no personal beliefs that would prevent me from
discharging my obligation as a federal judge to apply any Supreme Court
precedent on this issue.
Question 23. Do you believe that the death penalty is
Constitutional?
Answer 23. The Supreme Court determined that the death penalty is
constitutionally permissible in Gregg v. Georgia. I have no personal
belief which would prevent me from following the law in this area.
Question 24. If you were a Supreme Court Justice, under what
circumstances would you vote to overrule a precedent of the Court?
Answer 24. The Supreme Court has announced several factors it
considers when deciding whether to overrule its precedent, including
whether or not the prior ruling is unworkable, the cost of overruling
the prior decision for people who have ordered their lives based on the
principles of that case, whether the doctrinal footings of the prior
opinion have been weakened by the evolution of any legal principle
decided therein, and whether there has been a change in the basic facts
of the prior opinion that renders the opinion obsolete or supports an
argument for overruling the decision. If I were Justice on the United
States Supreme Court, I would apply these factors, which were discussed
in Casey, in deciding a request to overrule a prior precedent.
Question 25. Do you consider legislative intent and the testimony
of elected officials in debates leading up to passage of an act? And
what weight do you give legislative intent?
Answer 25. A statute must be applied so as to give full effect to
the intent of the legislature in enacting the statute. Legislative
intent is first determined by giving effect to the plain meaning of the
words of the statute. If there is doubt as to the meaning of the
statute and no case precedent which has previously construed the
statute, then a court should look to the interpretations given statutes
that are analogous to the statute in question. If these means still do
not permit a court to discern the legislative intent, then secondary
sources such as legislative history and debate may be considered to
make this determination. A judge should accord more weight to a
committee report on the legislation than to the statements of
individual elected officials in debates.
______
Responses of John W. Darrah to Questions From Senator Hatch
Question 1. If a particular judge or court has a high rate of
reversal on appeal, either to the Court of Appeals or the Supreme
Court, is that a problem? If it is, what can and should be done to
remedy that problem?
Answer 1. Yes, a high rate of reversal is a problem. It is
inappropriate if a federal judge disregards legal precedent or statutes
in deciding a case. If I am fortunate enough to be confirmed as a
federal judge, I would follow and apply precedent and statutes.
Question 2. In your view, to what extent, if any, do the rights
protected by the Constitution grow or shrink with changing historical
circumstances?
Answer 2. The rights of the Constitution are generally found in the
plain language of its provisions. As a lower court judge, I would
follow the opinions of the Supreme Court as it has examined,
considered, and interpreted the Constitution.
Question 3. Under what circumstances do you believe it appropriate
for a federal court to declare a statute enacted by Congress
unconstitutional?
Answer 3. A statute enacted by Congress is presumed to be
constitutional. As a Federal District Court Judge, I would uphold that
presumption of constitutionality and examine the language of the
statute so challenged to find a construction of the statute both
consistent with the intention of Congress and within the provisions of
the Constitution. It would seem to be an extremely rare instance when a
Congressional enactment was found to be beyond the presumption of
constitutionality.
Question 4. Please describe in reasonable detail the Supreme
Court's recent decision in United States v. Morrison, 120 S. Ct. 1740
(2000), and its 1995 decision United States v. Lopez, 514 U.S. 549
(1995), explaining to the Committee your understanding of those
decisions, and their holdings regarding congressional power. Some
commentors have accused the Supreme Court of judicial activism because
of its decisions in those cases. Do you agree? Please explain.
Answer 4. In United States v. Lopez, the Supreme Court invalidated
the gun-free school zone act which made it a federal offense to possess
a firearm at or near a school. The Court found that such a possession
was not an economic activity under the commerce clause as not
``substantially affecting interstate commerce.''
In United States v. Morrison, the Court held that the 1994 Violence
Against Women Act, which created a federal cause of action for victims
of sexually related violence against their assailant for damages in
federal court, exceeded Congress's power under the commerce clause. The
opinion held that it was appropriate to aggregate interstate incidents
of activity to determine whether it ``substantially affected interstate
commerce'' only if the activity was economic in nature.
In both cases, the Supreme Court was interpreting the outer
boundaries of Congressional power. As a federal judge, I would be
obligated to follow these Supreme Court opinions, regardless of whether
some commentators view them to be examples of judicial activism.
Question 5. In your view, is the use of race, gender or national
origin-based preferences in such areas as employment decisions (hiring,
promotion or layoffs), college admissions and scholarship awards, and
the awarding of government contracts, lawful under the Equal Protection
Clause of the 14th Amendment? Please explain.
Answer 5. In Adarand Constructors v. Pena, 515 U.S. 200 (1995), the
Supreme Court held that affirmative action-type programs based on race
or national origin be subject to ``strict scrutiny'' and will be upheld
only if they are the least restrictive means of serving a compelling
government interest. As a federal judge, I would apply the holding of
the Supreme Court opinion.
Question 6. Do you believe that the view of the death penalty taken
by Justices Brennan, Marshall and Blackmun--that the death penalty is
unconstitutional notwithstanding the clear constitutional text
sanctioning it--is a permissible view for a federal judge to hold?
Answer 6. The Supreme Court has repeatedly held the death penalty
to be constitutional. A federal judge is obligated to follow that
mandate and apply the death penalty when required. It is not
permissible for a federal judge to hold otherwise.
Question 7. Do you personally have any legal or moral beliefs that
would inhibit or prevent you from imposing a death sentence in any
criminal case that might come before you as a federal judge? Please
explain.
Answer 7. I have no legal or moral beliefs that would inhibit the
imposition of the death sentence in a criminal case that might come
before me as a federal judge. As a federal judge, it would be my
obligation to apply this law, which has been held to be constitutional.
Question 8. Do you believe that 10, 15 or even 20-year delays
between conviction of a capital offender and execution is too long?
Answer 8. Inordinate delays between the conviction of a capital
offender and the execution of the death sentence are contrary to a
basic principle of jurisprudence that the execution of all court orders
should be accomplished in a reasonably timely fashion.
Question 9. Do you believe that once Congress or a State
legislature has made the policy decision that capital punishment is
appropriate, then the federal courts should focus their resources on
resolving capital cases fairly and expeditiously?
Answer 9. Yes, I believe that once Congress or a State legislature
has made the policy decision that capital punishment is appropriate,
the federal courts should focus their resources on resolving capital
cases fairly and expeditiously.
Question 10. The sentencing of criminal defendants in federal court
is conducted under the federal Sentencing Guidelines. Some have argued
that the Guidelines do not provide enough flexibility for the
sentencing judge, while others have argued that the Guidelines provide
needed consistency in sentencing. What is your view of the federal
Sentencing Guidelines and their application?
Answer 10. The Federal Sentencing Guidelines do provide a general
uniformity in the sentences imposed for various criminal misconduct.
The consistency which is achieved through the Guidelines assures that
all will receive equal treatment under the law. If I were confirmed as
a Federal District Court Judge, I would have no reluctance to follow
the Guidelines.
Question 11. What is your view of mandatory minimum criminal
sentences and would you have any reluctance to impose or uphold them as
a federal judge?
Answer 11. Mandatory minimal criminal sentences are a valid
exercise of Congressional authority. I would have no reluctance to
impose or uphold them as a federal judge.
Question 12. What would you do if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision? Or would you apply your own best
judgment of the merits? Take, for example, the Supreme Court's recent
decision in United States v. Playboy Entertainment Group Inc., No. 98-
1682 (decided May 22, 2000), where the Court struck down a provision of
the 1996 Telecommunications Act that was designed to protect children
from exposure to sexually explicit adult programming on cable
television.
Answer 12. If I were conformed as a Federal District Court Judge, I
would apply a decision of the Supreme Court or the Court of Appeals to
all cases before me when required. I would not apply any personal views
to the merits of those decisions.
Question 13. Please describe in reasonable detail your
understanding of the case recently argued before the Supreme Court
entitled Dickerson v. United States, which asked whether a defendant's
voluntary confession could be admitted into evidence in the
Government's case in chief under 18 U.S.C. Sec. 3501, even if the
confession was not preceded by the warnings set forth in Miranda v.
Arizona, 384 U.S. 486 (1966)? Please explain to the Committee your
understanding of Miranda, Section 3501, and the proper role of the
Congress and the Courts in establishing rules of evidence and procedure
for federal courts. Also, please state whether you believe the Miranda
decision is an example of judicial activism.
Answer 13. The question presented in Dickerson is whether a
voluntary confession may be admitted into evidence under 18 U.S.C.
Sec. 3501, even if the confession was obtained without providing the
warnings set forth in the Supreme Court case of Miranda v. Arizona. In
the Miranda case, the Supreme Curt required certain admonishments given
before any statements made by an accused could be admissible into
evidence. Section 3501 uses a ``totality of the circumstances test'' to
determine whether or not such a confession would be admissible even if
Miranda warnings were not given. The case presents complicated legal
issues, which will soon be resolved by the Supreme Court. If I am
fortunate enough to be confirmed as a Federal District Court Judge, I
will follow whatever the Supreme Court rules in the Dickerson case.
Question 14. Please define judicial activism. In your view, is Roe
v. Wade, 410 U.S. 113 (1973), an example of judicial activism?
Answer 14. Judicial activism has sometimes been defined as an
improper refusal of a judge to follow a statute or the precedential
ruling of a higher court. Such judicial activism is inappropriate.
Although some commentators have labeled Roe v. Wade as an example of
judicial activism, if I am fortunate enough to be confirmed as a
Federal District Court Judge, I would follow the Supreme Court's ruling
in Roe v. Wade, as modified by Planned Parenthood 505 U.S. 833 (1992).
Question 15. The Supreme Court, through a process of so-called
selective incorporation, has applied most, if not all, of the
provisions of the Bill of Rights against the States. Thus, for
instance, the First Amendment, which originally was intended to apply
only to the federal government, has been applied to the States. The
Second Amendment, however, which protects the rights of law-abiding
citizens to own firearms in this country, has not. Do you believe that
Second Amendment ought to be applied to the States?
Answer 15. If I were confirmed as a Federal District Court Judge, I
would follow any Supreme Court precedent regarding this issue. If I am
fortunate enough to be confirmed as a Federal District Court Judge and
were presented with a Second Amendment case, I would follow Supreme
Court precedent as well as the plain language of the Second Amendment.
Question 16. If most of the other provisions of the Bill of Rights
apply to the States, why shouldn't the Second Amendment? On what
principled basis would it be appropriate to apply almost all of the
other provisions of the Bill of Rights against the States, but not the
Second Amendment?
Answer 16. The decisions regarding the application of certain
provisions of the first eight amendments to the Constitution to the
States raises complicated legal issues. If I were confirmed as a
Federal District Court Judge and a case presenting this issue came
before me, I would carefully examine the facts of the case and research
thoroughly all decisions involving the doctrine of incorporation and
follow all binding precedent.
Question 17. The precedents of Circuit Courts are binding on the
district courts within the particular Circuit. Are you committed to
following the precedents of higher courts faithfully and giving them
full force and effect, even if you personally disagree with such
precedents?
Answer 17. The precedents of Circuit Courts are binding on all the
district courts within that particular Circuit. If I am confirmed as a
Federal District Court Judge, I would faithfully follow the precedents
of the higher courts and give them full force and effect in every case.
Question 18. You have stated that, if confirmed, you would be bound
by Supreme Court precedent and the precedent of the Circuit Court of
Appeals over your district or circuit. There may be times, however,
when you will be faced with cases of first impression. What principles
will guide you, or what methods will you employ, in deciding cases of
first impression?
Answer 18. I would first determine whether the case was truly one
of first impression. If faced with such a case, the statute must be
applied so as to give full effect to the intent of the legislature in
enacting the statute. Legislative intent is first determined by giving
effect to the plain meaning of the words of the statute. If there is
doubt as to the meaning of the statute and no case precedent which has
previously construed the statute, then a court should look to the
interpretations given statutes that are analogous to the statute in
question. If these means still do not permit a court to discern the
legislative intent, then, under Supreme Court precedent, secondary
sources such as legislative history and debate may be considered to
make this determination. A judge should accord more weight to a
committee report on the legislation than to the statements of
individual elected officials in debates.
______
Circuit Court of the
18th Judicial Circuit,
Wheaton, IL, June 19, 2000.
Re Jacqueline Grischow.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen Senate
Office Building, Washington, DC.
Dear Mr. Chairman: I have read letters written by Jacqueline
Grischow to Senator Peter Fitzgerald dated May 23, 2000 and the Senate
Judiciary Committee in care of Senator Orrin Hatch dated May 31, 2000.
I have no present recollection of hearing Ms. Grischow's case. Appeals
of a decision of the Illinois Industrial Commission are heard by the
Circuit Court as an administrative review of the Commission's decision.
The review is limited to the transcript of preceedings before the
administrative agency. No evidence is considered by the Circuit Court
Judge at this time.
Ms. Grischow's accusations that I considered lies and false
testimony, therefore, could not possibly have occurred. Of course, I do
not threaten litigants before me and take every possible step regarding
pro se litigants to try to minimize any anxiety in the experience in
appearing in court without an attorney. I am certain this was true in
the case of Ms. Grischow. It is unfortunate that Ms. Grischow has the
perception she was treated unfairly by me, even though I ruled in her
favor, as explained below. Ms. Grischow asserts that she was told that
I discussed the case with her lawyer. I would never make the comments
purportedly attributed to me by her attorney. Her attorney, Ralph
Gabric, is a past-president of the Illinois State Bar Association and a
lawyer with an impeccable reputation for honesty and legal propriety.
It is difficult to believe that Mr. Gabric would have made the
statements she attributes to him.
My records disclose the following history of the case. The case was
filed in 1990 by Ms. Grischow through her attorney against the Illinois
Industrial Commission. I reversed the Commission's ruling against Ms.
Grischow on June 26, 1991 and entered judgment in favor of her. My
ruling was reversed by the Illinois Appellate Court in April of 1992,
which reinstated the Commission's decision against Ms. Grischow. (See
Answer 15(2) #12 on page 8 of my response to the United States Senate
Questionnaire for Judicial Nominees). Five years later, in 1997, Ms.
Grischow filed a pro se petition for further relief. Ms. Grischow's
previous attorney, Ralph Gabric, had withdrawn from representing her in
this matter. In August of 1997, I granted the defendant's motion to
dismiss Ms. Grischow's petition for further relief. The defendant also
sought sanctions against Ms. Grischow for her alleged frivolous
continued prosecution of this claim. I refused to enter sanctions
against her. In November of 1997, the Illinois Supreme Court denied Ms.
Grischow's appeal to that court.
I have never been advised by the Illinois Judicial Inquiry Board
that Ms. Grischow has ever submitted any complaint regarding my conduct
in her case. Thank you for your consideration of the foregoing. Please
contact me if any further discussion is necessary.
Very truly yours,
John W. Darrah,
Circuit Court Judge.
______
Responses of Paul C. Huck to Questions From Senator Thurmond
Question 1. We frequently hear the argument that the courts act in
response to various social problems because the legislature has failed
to act on important issues. What is your view of courts acting in this
manner?
Answer 1. Our tripartite form of government, providing an essential
balance of powers, is the genius of our nation. It is founded on the
clear notion that the will of the people is to be expressed by their
elected representatives through laws which they enact or choose not to
enact. The courts, on the other hand, are only to interpret those laws
and the Constitution and to hear and resolve, in a neutral, evenhanded
manner only those legal disputes which are properly brought before
them, not to legislate.
Question 2. Do you have any personal objections to the death
penalty that would cause you to be reluctant to impose or uphold a
death sentence?
Answer 2. No, I have no personal objections to the death penalty
that would cause me to be reluctant to impose or uphold a death
sentence.
Question 3. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a Federal judge?
Answer 3. Mandatory minimum criminal sentences are an appropriate
attempt to bring consistency, fairness and predictability to
sentencing. I will uphold and follow these sentencing guidelines
without any reluctance if confirmed as a judge of the United States
District Court.
Question 4. As you are well aware, the sentencing of criminal
defendants in Federal court is conducted under the Federal Sentencing
Guidelines. Some argue that the Guidelines do not provide enough
flexibility for the sentencing judge, while others say the Guidelines
provided needed consistency. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 4. Like mandatory minimum criminal sentences, the Federal
Sentencing Guidelines properly reflect the collective judgment of those
ultimately responsible for establishing an appropriate and consistent
level of punishment for criminal activity. The basic premise for the
guidelines is that sentencing should be uniform and not dependent upon
the personal feelings of any particular judge. If confirmed, I will
apply the guidelines as written.
Question 5. As you know, the Prison Litigation Reform Act, which
was an attempt to limit prisoner litigation and court involvement in
prison operations. Do you believe that the Act has been beneficial to
the legal system or do you believe it places too many restrictions on
the ability of prisoners to make claims and for judges to remedy
Constitutional violations in the prison context?
Answer 5. The 1996 Prison Litigation Reform Act reflects a balance
struck by Congress between eliminating frivolous prisoner litigation
and preserving a limited role for courts in the prison context. By
requiring exhaustion of administrative remedies by limiting the number
of unsustainable lawsuits and by requiring the finding of a specific
violation of a prisoner's constitutional rights, the PLRA appears to be
beneficial to the legal system by more efficiency and fairly allocating
its assets. It is reasonable to conclude that unnecessary litigation,
which has burdened the federal courts with countless frivolous cases,
will be eliminated and that, as a consequence, appropriate litigation
may obtain even greater judical attention and resources. If confirmed,
I will follow the PLRA and its applicable precedents.
Question 6. As you are aware, Federal Rule of Civil Procedure 11
permits federal judges to impose sanctions against attorneys for
unwarranted claims or representations made in their pleadings. Some say
this rule is an important tool for judges, while others believe it
discourages litigants from testing the boundaries of existing law. What
is your opinion of Rule 11?
Answer 6. Rule 11 was a response to certain abusive litigation
conduct by some lawyers and their clients and provides judges an
additional and useful tool for assuring that pleadings filed by an
attorney are filed in good faith. The range of Rule 11 sanctions,
limited to that which will be sufficient to deter the offensive conduct
involved, allows for a measured and incremental response to
inappropriate litigation conduct. In my experience, most trial lawyers
want courts to use these kinds of rules more often to counter
unprofessional, sometimes unethical conduct. As I understand Rule 11,
it does not unduly discourage attorneys from testing the boundaries of
existing law. As Rule 11 has been interpreted, arguments for
extensions, even reversal, of existing laws are not violations of Rule
11 as long as they are non-frivolous. Moreover, the ``safe harbor''
provision, giving the alleged offender twenty-one days to consider
withdrawing the filed papers, protects those attorneys who
inadvertently file inappropriate pleadings.
______
Responses of Paul C. Huck to Questions From Senator Smith
Question 1. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If a nominee for any federal
judgeship refuses to answer questions about a Constitutional issue,
should that individual be confirmed?
Answer 1. A nominee for a federal judgeship should answer all
questions asked of him or her consistent with the applicable Code of
Conduct for federal judges. Whether refusal to answer any specific
question warrants denial of confirmation depends on the circumstances
involved.
Question 2. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If you were a member of the United
States Senate, would you agree that it is difficult to advise and
consent to a nominee when a candidate refuses to answer questions on
Constitutional issues?
Answer 2. I agree that the more information a member of the United
States Senate has about a District Court nominee, the better able that
member is to personally evaluate the nominee. This includes the
nominee's general understanding of Constitutional issues, the most
important of which is whether that nominee will follow binding
precedent of the Supreme Court and the applicable Circuit Court on
Constitutional issues.
Question 3. What is the purpose of the United States Senate in
holding hearings on nominees for the federal bench?
Answer 3. It is my understanding that the purpose of the United
States in holding hearings on nominees for the federal bench is to
assure that qualified, experienced, honorable and respectful persons
are appointed to the bench. Specifically with regard to District Court
nominees, the Senate must assure itself that the nominees will follow
binding precedent, will neutrally, even-handedly apply that precedent
to a specific legal dispute properly brought before the court and will
not legislate by allowing their own bias or personal views to dictate
their decisions.
Question 4. Is it possible for a Senator to advise and consent to
the nominee if nominee simply refers to precedent without explaining
his or her legal analysis?
Answer 4. Yes, it is possible for a United States Senator to fairly
and appropriately evaluate a nominee for purposes of advising and
consenting where the nominee commits to following binding precedent to
the best of his or her ability. This, of course, assumes that the
nominee has also demonstrated a high level of legal ability and
experience, excellent character, a judicial temperament and other
positive personal qualities.
Question 5. How can I as a Senator advise and consent to a nominee
without answers to Constitutional questions?
Answer 5. A United States Senator can advise and consent to a
nominee by asking questions regarding his or her general knowledge of
the Constitution, ability to understand and analyze legal questions,
and his or her commitment and ability to abide by the District Court's
role in a constitutionally consistent fashion. That role is to decide
specific legal disputes, which are narrowly and properly presented to
the court by the litigants, on a neutral, unbiased basis under
established precedent, and where there is no direct precedent the most
closely analogous precedent, to ensure a fair, reasoned and consistent
resolution.
Question 6. What questions are legitimate to ask a candidate
without the candidate prejudicing himself or herself?
Answer 6. Questions that may be asked of a candidate without the
candidate improperly prejudicing himself or herself include questions
relating to the candidate's character, legal ability and experience,
understanding of the limited role of the courts in our tripartite
government, adherence to binding precedent, judicial temperament,
personal background, financial issues, conflicts of interest issues,
respect for others, work habits and similar subjects and
characteristics.
Question 7. Are there any questions that you feel are off limits
for a Senator to ask?
Answer 7. No, each United States Senator has the right to ask any
question which he or she deems appropriate and instructive as they
relate to a judicial candidate's qualifications for appointment.
However, the Code of Conduct sets limits to the answers which a federal
judge may express, including those which may present an appearance of
impartiality or of an advisory opinion.
Question 8. If a U.S. District Court Judge or U.S. Court of Appeals
judge concludes that a Supreme Court precedent is flatly contrary to
the Constitution, are there any circumstances under which the Judge may
refuse to apply that precedent to the case before him or her?
Answer 8. No, both U.S. District Court judges and U.S. Court of
Appeals judges are bound by the Supreme Court's interpretation of the
Constitution regardless of the judges' personal views, if any.
Question 9. If you were a Supreme Court Justice in 1856, what would
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
Answer 9. I honestly do not know what I would have done because I
cannot fairly place myself back in time, in those completely different
circumstances and without the benefit of the history, regarding the
issues and legal arguments raised in Dred Scott v. Sandford. This is
particularly so without having the parties legal briefs, oral arguments
and existing precedent.
Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1856), the court apparently held, as you well know there were eight
separate opinions in the case, that black slaves were not citizens of
the United States. How should that precedent be treated to the courts
today?
Answer 10. The Dred Scott v. Sandford decision is not good
precedent today and should not be treated as precedent because it was
abrogated.
Question 11. If you were a judge in 1857, would you have been bound
by your Oath and would you have been mandated to follow the binding
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 303 (1856)?
Answer 11. Yes, as a U.S. District Court judge in 1857, I would
have been bound to follow the holdings in Dred Scott v. Sandford.
Question 12. If you were a Supreme Court Justice in 1896, what
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
Answer 12. I cannot reasonably place myself back in 1896 and
honestly state how I would have voted in Plessy v. Ferguson,
particularly without the benefit of the contending briefs, oral
arguments and a sense of all the then existing precedent.
Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority
of the court held as not a violation of the Fourteenth Amendment to the
Constitution a Louisiana statute which provided that all railway
companies provide ``equal but separate accommodations'' for black and
white passengers, imposing criminal penalties for violations by railway
officials. How should that precedent be treated by the Courts?
Answer 13. Plessy v. Ferguson is not a good precedent for any court
today and should not be treated as a binding decision because it was
overruled by the Supreme Court.
Question 14. If you were a Supreme Court Justice in 1954, what
would you have held in Brown v. Board of Education, 347 U.S. 483
(1954)?
Answer 14. If I were a Supreme Court Justice hearing the case of
Brown v. Board of Education in 1954, I do not know how I would have
ruled, particularly without having access to the factual context
presented and considered, the decisions since Plessy v. Ferguson, the
legal briefs and the oral argument which the Justices had to consider.
Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954),
the court held that the segregation of children in public schools
solely on the basis of race, even though the physical facilities and
other tangible factors may be equal, deprive the children of the
minority group of equal educational opportunities contrary to the
protections contained within the Fourteenth Amendment to the
Constitution. How should that precedent be treated by the Courts?
Answer 15. Brown v. Board of Education remains good precedent and
should be treated as such by all inferior courts.
Question 16. If you were a Supreme Court Justice in 1973, what
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
Answer 16. I do not know how I would have ruled in Roe v. Wade,
especially without the benefit of the parties' briefs, legal arguments
and applicable precedents. Inferior courts are obligated to follow this
case, as modified by Planned Parenthood v. Casey, as it is binding
Supreme Court precedent.
Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held
that a Texas statute which proscribed an abortion except when necessary
to save the life of the mother was a violation due process clause of
the Fourteenth Amendment as an unjustified deprivation of liberty. Do
you agree with the legal reasoning of the holding or of the Justice
Renquist dissent in that case?
Answer 17. Since the Roe v. Wade, holding, as modified by the
Planned Parenthood v. Casey decision, is binding precedent, the role of
a District Court Judge is to follow that precedent.
Question 18. We understand the Supreme Court precedent, but what is
your personal view on the issue of abortion?
Answer 18. I have no personal view on any facet of the abortion
issue which would prevent me from following applicable precedent and
rendering a fair decision based on all relevant, binding precedent.
Question 19. We understand the Supreme Court precedent, but what is
your personal view on the issue of the death penalty?
Answer 19. The Supreme Court has held that the death penalty is
constitutional. If confirmed I will follow that precedent. I have no
personal view which would prevent me from imposing or upholding the
death penalty.
Question 20. We understand the Supreme Court precedent, but what is
your personal view on the issue of the Second Amendment to the
Constitution?
Answer 20. I have no personal view which would prevent me from
deciding any case which implicates the Second Amendment based on
binding precedent.
Question 21. In Planned Parenthood v. Casey, (505 U.S. 833 (1992))
the Supreme Court held that the government interest in preserving life
must be balanced against a mother's right of privacy and access to
abortion which may not be unduly burdened. Do you believe the ``right
to privacy'' includes the right to take away the life of an unborn
child?
Answer 21. In Planned Parenthood v. Casey, the Supreme Court
modified Roe v. Wade, and established a balance between the interests
of the mother and those of the government. I have no personal view
which would prevent me from deciding any case involving abortion issues
in accordance with Planned Parenthood v. Casey, and any subsequent
decisions on this issue.
Question 22. Again, I understand the state of the law on the
Supreme Court's interpretation on the Issue of abortion, but I am
interested in your personal beliefs on the issue, do you personally
believe that an unborn child is a human being?
Answer 22. I have no personal view on any facet of the abortion
issue which would prevent me from following applicable precedent and
rendering a fair decision based on all relevant, binding precedent.
Question 23. Do you believe that the death penalty is
Constitutional?
Answer 23. Yes, the Supreme Court has ruled that the death penalty
is constitutional, and like all Supreme Court precedent, if I were
fortunate enough to be confirmed, I would be bound to and would follow
that precedent.
Question 24. If you were a Supreme Court Justice, under what
circumstances would you vote to overrule a precedent of the Court?
Answer 24. Stare decisis is an important legal concept necessary to
``the rule of law'', which provides judges, lawyers and the public with
consistency and predictability in their approach to legal questions.
Supreme Court precedents should be seldom overruled, and then only by
the Supreme Court and in such a way as to adhere as much as reasonably
possible to the concept of stare decisis. The doctrine of stare decisis
provides that the Supreme Court should not lightly overturn its
precedent. The factors which a Supreme Court Justice may consider
include whether the precedent has proven unworkable and whether
overturning the precedent would damage the interests of those who
relied on it and undermine the legitimacy of the courts.
Question 25. Do you consider legislative intent and the testimony
of elected officials in debates leading up to passage of an act? And
what weight do you give legislative intent?
Answer 25. Answering the second question first, all courts should
and must give full weight to the legislative intent of every
Congressional act. Legislative intent is generally set forth in the
plain language of the act. In answer to the second question, yes, when
the legislative intent is not found in the plain language of the act,
courts may resort to an examination of the act's legislative history,
including committee reports and relevant testimony of elected officials
leading to the passage of the act.
Responses of Paul C. Huck to Questions From Senator Hatch
Question 1. If a particular judge or court has a high rate of
reversal on appeal, either to the Court of Appeals or to the Supreme
Court, is that a problem? If it is, what can and should be done to
remedy that problem?
Answer 1. If a particular judge or court has a high rate of
reversal on appeal which is noticeably beyond the norm, that appears to
be a problem. The judge or court should first attempt to determine if
there is an inappropriate cause for the abnormal rate of reversals. If
it appears that there is such a cause, which the judge or court is
unwilling or unable to rectify, then it may be appropriate for the
chief judge to counsel with the judge or judges involved to try to
rectify the situation.
Question 2. In your view, to what extent, if any, do the rights
protected by the Constitution grow or shrink with changing historical
circumstances?
Answer 2. The rights protected by the Constitution do not grow or
shrink with changing historical circumstances. However, changing
historical circumstances may affect how those protected rights are
applied, for example, in the area of technology.
Question 3. Under what circumstances do you believe it appropriate
for a federal court to declare a statute enacted by Congress
unconstitutional?
Answer 3. A federal court may declare a statute enacted by Congress
unconstitutional only under very limited circumstances, which
circumstances are seldom present. To begin with, all congressional acts
come to the federal courts with the presumption of being
constitutional. Thus, in hearing any legal case challenging the
constitutionality of a Congressional statute, the reviewing court must
first assume constitutionality. Next, if there is a non-constitutional
issue presented which will dispose of the case without implicating the
constitutional issue, the case should be resolved on that other issue.
However, if the constitutional issue must be addressed and if there are
different interpretations of the effect of the statute, one which
results in constitutionality, the other unconstitutionality, the court
must accept the former interpretation in rendering its decision.
Finally, if the court finds the statute unconstitutional, it must do so
only in the narrowest manner so as to leave intact as much of the
legislation as possible.
Question 4. Please describe in reasonable detail the Supreme
Court's recent decision in United States v. Morrison, and its 1995
decision United States v. Lopez, explaining to the Committee your
understanding of those decision, and their holdings regarding
congressional power. Some commentators have accused the Supreme Court
of judicial activism because of its decisions in those cases. Do you
agree? Please explain.
Answer 4. In United States v. Lopez, 514 U.S. 549 (1995), the
Supreme Court, for the first time in many decades, struck down a
Congressional act on the grounds that the act exceeded the Congress'
Commerce Power. The Gun-Free School Zones Act of 1990 made it a federal
crime to knowingly possess a firearm in a school zone. The Supreme
Court held that the criminal conduct must substantially affect
interstate commerce and that the Congress had not sufficiently
demonstrated that the possession of guns in school zones substantially
affected interstate commerce. In essence, the Supreme Court found that
the act went beyond the Congress' power, did not truly involve
commercial activity and was directed to a local rather than a national
activity.
In United States v. Morrison, 120 S.Ct. 1740 (2000), the Supreme
Court, relying in large measure on Lopez, held unconstitutional that
aspect of the Violence Against Women Act which provided a federal civil
remedy for victims of gender-motivated violence. The Court held that
this aspect of the VAWA exceeded the Congress' Commerce power because
the prohibited act was not economic activity and was not sufficiently
tied to or substantially affecting interstate commerce. Unlike Lopez,
the Court acknowledged the VAWA was supported by numerous findings
regarding the serious and aggregate impact of such violence on the
victims and their families. However, the Supreme Court rejected these
findings as being too attenuated to constitutionally support the
Congress' Commerce power. In sum, as in Lopez, the Supreme Court
concluded that the Constitution requires the courts to distinguish
between prohibited activity which is truly national versus truly local,
and that the Congress may not regulate non-economic, violent criminal
activity based solely on the prohibited activities' aggregate effect of
interstate commerce.
The net effect of Lopez and Morrison appears to be that the Supreme
Court will more carefully examine Congress' reliance on its Commerce
powers to enact federal criminal and civil remedies legislation.
As a litigator, I read Supreme Court decisions to determine their
legal impact and applicability to my cases, without regard to whether
they were the result of judicial activism. If I were a District Court
judge, I would be obligated to follow, and would follow, precedent,
including Morrison and Lopez.
Question 5. In your view, is the use of race, gender or national
origin-based preferences in such areas as employment decisions (hiring,
promotion or layoffs), college admissions and scholarship awards, and
the awarding of government contracts, lawful under the Equal Protection
Clauses of the 14th Amendment? Please explain.
Answer 5. The Supreme Court has held that governmental use of race
or national original-based preferences is unconstitutional and violates
the Equal protection clause of the 14th Amendment. For example in
Adarand Constructor, Inc. v. Pena, 515 U.S. 200 (1995) and City of
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the Supreme Court
ruled that strict scrutiny must be applied to all race-based
affirmative action programs. This strict scrutiny requires that the
government must demonstrate, by record evidence, a compelling
governmental interest which justifies a remedy granted on such facially
unequal treatment and further that the remedy selected is narrowly
crafted and the least restrictive to accomplish that compelling
interest. As to gender-based preferences, the Supreme Court has ruled
that the intermediate scrutiny standard applies.
Question 6. Do you believe that the view of the death penalty taken
by Justices Brennan, Marshall and Blackmun--that the death penalty is
unconstitutional notwithstanding the clear constitutional text
sanctioning it--is a permissible view for a federal judge to hold?
Answer 6. No. Justices Brennan, Marshall and Blackmun's view of the
death penalty, as expressed in their dissenting opinions, is to a
permissible option for any federal judge. The Supreme Court has clearly
held that the death penalty is constitutional. Gregg v. Georgia, 428
U.S. 153 (1976).
Question 7. Do you personally have any legal or moral beliefs that
would inhibit or prevent you from imposing a death sentence in any
criminal case that might come before you as a federal judge? Please
explain.
Answer 7. I have no legal or moral belief which would inhibit or
prevent me from imposing the death penalty in a case before me, if I
were confirmed as a federal judge. The law on this point is clear and I
will follow that law.
Question 8. Do you believe that 10, 15 or even 20-year delays
between conviction of a capital offender and execution is too long?
Answer 8. Yes, delays of 10 to 20 years between conviction of a
capital offender and execution are patently too long.
Question 9. Do you believe that once Congress or a State
legislature has made the policy decision that capital punishment is
appropriate, then the federal courts should focus their resources on
resolving capital cases fairly and expeditiously?
Answer 9. Yes. Moreover, failure to do so undermines the public's
confidence in the judicial system.
Question 10. The sentencing of criminal defendants in federal court
is conducted under the federal Sentencing Guidelines. Some have argued
that the Guidelines do not provide enough flexibility for the
sentencing judge, which others have argued that the Guidelines provide
needed consistency in sentencing. What is your view of the federal
Sentencing Guidelines and their application?
Answer 10. The federal Sentencing Guidelines are an appropriate
method to bring fairness, consistency and predictability to sentencing
and to reflect the public will with regard to the level of punishment
to be imposed. The collective wisdom and breadth of experience of those
who establish the guidelines are obviously far greater than any federal
judge or panel of judges.
Question 11. What is your view of mandatory minimum criminal
sentences, and would you have any reluctances to impose or uphold them
as a federal judge?
Answer 11. Like the federal Sentencing Guidelines, mandatory
minimum criminal sentences fairly reflect the public's voice with
regard to the level of and consistency of punishment for specific
criminal activity. If affirmed, I will follow both the Sentencing
Guidelines and the mandatory minimum sentences.
Question 12. What would you do if you believed the Supreme Court or
the Court of Appeals has seriously erred in rendering a decision? Would
you nevertheless apply that decision? Or would you apply your own best
judgment of the merits? Take, for example, the Supreme Court's recent
decision in United States v. Playboy Entertainment Group, Inc., where
the Court struck down a provision of the 1996 Telecommunications Act
that was designed to protect children from exposure to sexually
explicit adult programming on cable television.
Answer 12. Even if I, as a District Court judge, believed that the
Supreme Court or the Eleventh Circuit Court of Appeals had seriously
erred, I would be bound to, and I would, follow that decision, as I
would all applicable precedent.
Question 13. Please describe in reasonable detail your
understanding of the case recently argued before the Supreme Court
entitled Dickerson v. United States, which asked whether a defendant's
voluntary confession could be admitted into evidence in the
Government's case in chief under 18 U.S.C. Sec. 3501, even if the
confession was not preceded by the warnings set forth in Miranda v.
Arizona? Please explain to the Committee your understanding of Miranda,
section 3501, and the proper role of the Congress and the Courts in
establishing rules of evidence and procedure for federal courts. Also,
please state whether you believe the Miranda decision is an example of
judicial activism.
Answer 13. In Dickerson v. United States, 166 F.3d 687 (4th Cir.
1998), the District Court suppressed defendant's confession solely on
the grounds that it was obtained in violation of Miranda v. Arizona.
The Fourth Circuit held that the District Court erred in suppressing
the confession. The Court of Appeals for the Fourth Circuit noted that
the Congress had enacted 18 U.S.C. Sec. 3501 with the clear intent of
supplanting Miranda v. Arizona with a rule that restored voluntariness
as the test for admission of confessions in federal courts. That Court
then concluded that Sec. 3501 was within the Congress' rule making
powers over federal court's evidence and procedures and that Sec. 3501,
not Miranda v. Arizona, governs the admissibility of confessions. The
defendant appealed to the Supreme Court. Thus, the Supreme Court is
faced squarely with the issue of whether the predicate warning set
forth in and required by Miranda v. Arizona is a constitutional
requirement or whether it is simply a court made rule or requirement.
The determination of this issue is critical because if the Miranda
warning is a constitutional requirement, the Congress may not enact
statutes or rules which diminish that right. If, however, the Miranda
warning is merely a court made rule, the Congress may enact laws which
diminish that rule. In contrast to the bright-line test set forth in
Miranda v. Arizona, Sec. 3501 established a balancing test for
determining the voluntariness of a confession. The Sec. 3501 test takes
into consideration the totality of the circumstances surrounding the
accused's giving of his or her confession, including but not limited to
whether or not the accused was advised by the authorities or otherwise
knew that he or she was not required to make any statement that any
statement could be used against him or her and that he or she was
entitled to assistance of counsel.
With regard to the proper role of the Congress and the courts in
establishing rules of evidence and procedure for federal courts, in the
absence of a constitutional prohibition to the contrary, that
prerogative belongs to the Congress. The Congress expressly delegate to
the courts those rule making tasks.
As a litigator, I read Supreme Court decisions to determine their
legal impact and applicability to my cases, without regard to whether
they were the result of judicial activism. If I were a District Court
judge, I would be obligated to follow, and would follow precedent,
including the Supreme Court's decision to be rendered in Dickerson.
Question 14. Please define judicial activism. In your view, is Roe
v. Wade an example of judicial activism?
Answer 14. ``judicial activism'' is courts legislating or
administrating and is contrary to John Adam's classic and inciteful
observation that ours is a ``government of laws, not of men.'' Article
III of the Constitution both grants and circumstances the independent
authority of federal courts. In exercising that limited authority,
federal courts must acknowledge the constitutional balance of power and
may not usurp the rights and prerogatives of the legislative and
administrative branches of the government. Federal courts are limited
to resolving only those legal cases which are properly before them and
ripe for resolution. That resolution must be in a neutral manner
consistent with precedent, free of the court's personal views, bias and
agenda, and may not be used to advance the court's own political
philosophy, if any, or attempt to impose on either the legislative or
executive branches judicial oversight which is not specifically
provided by the Constitution or statute. When a court fails to adhere
to these principles, that is judicial activism.''
As a litigator, I read Supreme Court decisions to determine their
legal impact and applicability to my cases, without regard to whether
they were the result of judicial activism. If I were a District Court
judge, I would be obligated to follow, and would follow precedent,
including Roe v. Wade, modified by Planned Parenthood v. Casey.
Question 15. The Supreme Court, through a process of so-called
selective incorporation, has applied most, if not all, of the
provisions of the Bill of Rights against the States. Thus, for
instance, the First Amendment, which originally was intended to apply
only to the federal government, has been applied to the States. The
Second Amendment, however, which protects the rights of law-abiding
citizens to own firearms in this country, has not. Do you believe that
Second Amendment ought to be applied to the States?
Answer 15. If a binding precedent exists or comes into existence
which holds either that the Second Amendment applies or does not apply
to the States, I will, if confirmed, follow that precedent.
Question 16. If most of the other provisions of the Bill of Rights
apply to the States, why shouldn't the Second Amendment? On what
principled basis would it be appropriate to apply almost all of the
other provisions of the Bill of Rights against the States, but not the
Second Amendment?
Answer 16. If such an issue were presented to me, I would look to
precedents of higher courts which have addressed the issue of
incorporation and would follow those holdings on that issue. I have not
personal view which would prevent me from following those precedents.
Question 17. The precedents of Circuit Courts are binding on the
district courts within the particular Circuit. Are you committed to
following the precedents of higher courts faithfully and giving them
full force and effect, even if you personally disagree with such
precedents?
Answer 17. Yes, I am fully committed to following the precedents of
the Supreme Court and the Court of Appeals for the Eleventh Circuit. If
I am fortunate enough to be confirmed as a District Court judge, I will
faithfully follow such precedents, giving them full force and effect,
even if I were to personally disagree with them.
Question 18. You have stated that, if confirmed, you would be bound
by Supreme Court precedent and the precedent of the Circuit Court of
Appeals over your district or circuit. There may be times, however,
when you will be faced with cases of first impression. What principles
will guide you, or what methods will you employ, in deciding cases of
first impression?
Answer 18. In such rare cases of first impression, I would, if I am
fortunate enough to be confirmed, employ the following analysis. In
cases involving a statute, I would determine and follow the legislative
intent of the statute. In most cases the legislative intent will be set
forth in the clear language of the statute. In the absence of such
language, I would look to secondary sources to determine legislative
intent. This may be the legislative history or case precedents
interpreting closely analogous statutes.
In non-statutory cases. I would find the most analogous existing
precedent where a superior court has decided a similar issue and try to
determine my case as consistently as possible with that existing,
analogous precedent.
____
Responses of Joan Humphrey Lefkow to Questions From Senator Thurmond
Question 1. We frequently hear the argument that the courts act in
response to various social problems because the legislature has failed
to act on important issues. What is your view of courts acting in this
manner?
Answer 1. The fact that the legislature has not addressed a
particular social problem may indicate that a consensus has not been
reached among our elected representatives as to the most appropriate
response to the problem, or it may mean that a consensus has been
reached that the problem does not require a legislative response. Under
our Constitution's separation of powers, it is not the role of the
judiciary to act in place of Congress.
Question 2. Do you have any objections to the death penalty that
would cause you to be reluctant to impose or uphold a death sentence?
Answer 2. I have no personal views regarding the death penalty that
would prevent me from following the law regarding imposition of or
upholding the death penalty. The Supreme Court of the United States has
ruled in Gregg v. State of Georgia, 428 U.S. 153 (1976), that the
Constitution permits the death penalty.
Question 3. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a Federal judge?
Answer 3. Criminal penalties are set by the legislature, and
mandatory minimum penalties are properly a legislative decision. If I
were confirmed as a federal district judge, I would have no reluctance
to impose or uphold mandatory minimum sentences as required by the
statutes and Sentencing Guidelines.
Question 4. As you are well aware, the sentencing of criminal
defendants in Federal court is conducted under the Federal Sentencing
Guidelines. Some argue that the Guidelines do not provide enough
flexibility for the sentencing judge, while others say the Guidelines
provided needed consistency. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 4. Congress developed the Sentencing Guidelines in order to
bring more uniformity to sentencing based on the legislative
determination that disparities in sentencing that are not
distinguishable on the basis of differences in either the magnitude of
the crime or the harm to the victim undermine the public's confidence
in our criminal justice system. Congress has committed to the
Sentencing Commission the ongoing responsibility to monitor and assess
whether the Guidelines provide sufficient consistency and flexibility.
Whether judges should have more or less discretion in sentencing is an
issue committed to the Congress. If I were confirmed I would impose
sentences according to the Sentencing Guidelines.
Question 5. As you know, the Prison Litigation Reform Act, was an
attempt to limit prisoner litigation and court involvement in prison
operations. Do you believe that the Act has been beneficial to the
legal system or do you believe it places too many restrictions on the
ability of prisoners to make claims and for judges to remedy
Constitutional violations in the prison context?
Answer 5. The Prison Litigation Reform Act was designed to
discourage frivolous litigation while providing a limited role for
courts to consider certain claims by prisoners. Having reviewed many
prison civil rights cases which did not allege colorable constitutional
claims, I agree that prisoner litigation has imposed a substantial
burden on the federal court's limited resources and that the Act has
alleviated that burden. If I were confirmed, I would adhere to the Act
and Supreme Court and circuit precedent in applying the Act to cases
before me.
Question 6. As you are aware, Federal Rules of Civil Procedure 11
permits federal judges to impose sanctions against attorneys for
unwarranted claims or representations made in their pleadings. Some say
this rule is an important tool for judges, while others believe it
discourages litigants from testing the boundaries of existing law. What
is your opinion of Rule 11?
Answer 6. Because the courts are a finite resources, it is
important to conserve that resource for legitimate cases and to demand
proper conduct from counsel and parties. As with any punitive tool, a
judge should be temperate in the imposition of Rule 11 sanctions and
should take an incremental approach in dealing with misbehavior or
misconduct by counsel or litigants. Motions for sanctions can generate,
rather than discourage, litigation because a respondent to a motion may
file a counter-motion against the movant, and the court must then
devote time and thought to this satellite skirmish rather than the
principal case. My experience leads me to believe that the revisions to
Rule 11 made in the 1993 amendments, which allowed the courts somewhat
more flexibility in responding to misconduct issues, strike a workable
balance and facilitate the just, speedy, and inexpensive resolution of
cases by restraining improper tactics by counsel and litigants.
______
Responses of Joan Humphrey Lefkows to Questions From Senator Smith
Question 1. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If a nominee for any federal
judgeship refused to answer questions about a constitutional issue,
should that individual be confirmed?
Answer 1. The Senate should confirm those nominees whom it
believes, in its collective judgment, are qualified for the position of
federal judge. Although a nominee might be prevented by the Code of
Conduct for United States Judges from answering some questions (``A
judge should act at all times in a manner that promotes public
confidence in the * * * impartiality of the judiciary.'' Canon 2A), it
is ultimately the Senate's decision whether to confirm a judge who may
not be able to respond to a question about a constitutional issue.
Question 2. Aricle II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with the
``advice and consent'' of the Senate. If you were a member of the
United States Senate, would you agree that it is difficult to advise
and consent to a nominee when a candidate refuses to answer questions
on constitutional issues?
Answer 2. Yes, it might be difficult to advise and consent to a
nominee who refused to answer questions on Constitutional issues,
unless the question impinged on the nominee's ethical responsibility to
act in a manner that upholds the public's confidence in the
impartiality of the judiciary.
Question 3. What is the purpose of the United States Senate in
holding hearings on nominees for the federal bench?
Answer 3. As I understand it, the purpose of a confirmation hearing
is to give the members of the Judiciary Committee an opportunity to
question a nominee about his or her qualifications, integrity,
temperament, and knowledge of important constitutional cases.
Question 4. Is it possible for a Senator to advise and consent to a
nominee if the nominee simply refers to precedent without explaining
his or her legal analysis?
Answer 4. Yes, a Senator may advise and consent to a nominee based
on his or her qualifications, understanding of the proper role of a
judge, and commitment to the following precedent, which implies a
commitment to adhering to the legal analysis of that precedent.
Question 5. How can I as a Senator advise and consent to a nominee
without answers to Constitutional questions?
Answer 5. A Senator can advise and consent to a nominee based on
the nominee's background and experience, appropriate temperament,
understanding of the proper role of a judge, knowledge of the law and
of the Constitution's doctrine of separation of powers. There are some
questions, however, to which a nominee may not be able to respond
because of constructions of the Code of Conduct.
Question 6. What questions are legitimate to ask a candidate
without the candidate prejudicing himself or herself?
Answer 6. Questions concerning a nominee's background and
experience which qualify the nominee for the responsibility of the
position would not be likely to prejudice a candidate. Such questions
include those relating to a nominee's ability to consider all positions
presented, to follow the law as set down by statute and the higher
courts, to exhibit suitable temperament, integrity, and decisiveness,
and to possess good health, among other attributes.
Question 7. Are there any questions that you feel are off limits
for a Senator to ask?
Answer 7. No, there are no questions that are off limits for a
Senator to ask, although a nominee may not be able to answer some
questions consistent with the Code of Conduct.
Question 8. If a U.S. District Court Judge or U.S. Court of Appeals
Judge concludes that a Supreme Court precedent is flatly contrary to
the Constitution, are there any circumstances under which the Judge may
refuse to apply that precedent to the case before him or her?
Answer 8. There are no circumstances in which a United States
district judge or circuit judge is authorized to refuse to apply a
Supreme Court precedent on the basis that the judge believes the
precedent to be flatly wrong.
Question 9. If you were a Supreme Court Justice in 1856, what would
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
Answer 9. Had I been a Supreme Court Justice in 1856, I do not know
how I might have ruled in Dred Scott v. Sandford, but I trust I would
have carefully considered the facts presented, the words of the
Constitution, the arguments of the parties, and the views of my fellow
justices.
Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1856), the court apparently held, as you well know there were eight
separate opinions in the case, that blackslaves were not citizens of
the United States. How should that precedent be treated by the courts
today?
Answer 10. Because the Thirteenth Amendment to the Constitution,
ratified in 1865, prohibited slavery within the United States and the
Fourteenth Amendment, ratified in 1868, granted citizenship to all
person born or naturalized within the United States, Dred Scott v.
Sandford holds no precedential value.
Question 11. If you were a judge in 1857, would you have been bound
by your Oath and would you have been mandated to follow the binding
precedent of Dred Scott v. Sandford, 60, U.S. (19 How.) 393 (1856)?
Answer 11. Had I been a judge in 1857, I would have been bound by
my oath and would have been mandated to follow Dred Scott v. Sandford.
Question 12. If you were a Supreme Court Justice in 1896, what
would you have held in Plessy v. Freguson, 163 U.S. 537 (1896)?
Answer 12. Had I been a Supreme Court Justice in 1896, I do not
know how I might have ruled in Plessy v. Ferguson, but I trust I would
have carefully considered the facts presented, the words of the
Constitution, the arguments of the parties, and the views of my fellow
justices.
Question 13. In Plessy v. Ferguson, 163 U.S. 537 (1896), a majority
of the Court held as not a violation of the Fourteenth Amendment to the
Constitution a Louisiana statute which provided that all railway
companies provide ``equal but separate accommodations'' for black and
white passengers, imposing criminal penalties for violations by railway
officials. How should that precedent be treated by the Courts?
Answer 13. After Brown v. Board of Education of Topeka, 347 U.S.
483 (1954), the courts should treat Plessy v. Ferguson as having no
precedential value.
Question 14. If you were a Supreme Court Justice in 1954, what
would you have held in Brown v. Board of Education, 347 U.S. 483
(1954)?
Answer 14. Had I been a Supreme Court Justice in 1954, I do not
know how I might have ruled in Brown v. Board of Education, but I trust
I would have carefully considered the facts presented, the words of the
Constitution, the arguments of the parties, and the views of my fellow
justices.
Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954),
the court held that the segregation of children in public schools
solely on the basis of race, even though the physical facilities and
other tangible factors may be equal, deprive the children of the
minority group of equal educational opportunities contrary to the
protections contained within the Fourteenth Amendment to the
Constitution. How should that precedent be treated by the Courts?
Answer 15. Brown v. Board of Education has not been overruled, and
it should be treated as having precedential value in cases to which it
is applicable.
Question 16. If you were a Supreme Court Justice in 1973, what
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
Answer 16. Had I been a Supreme Court Justice in 1973, I do not
know how I might have ruled in Roe v. Wade, but I trust I would have
carefully considered the facts presented, the words of the
Constitution, the arguments of the parties, and the views of my fellow
justices.
Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held
that a Texas statute which proscribed an abortion except when necessary
to save the life of the mother was a violation of the due process
clause of the Fourteenth Amendment as an unjustified deprivation of
liberty. Do you agree with the legal reasoning of the holding or of the
Justice Rehnquist dissent in that case?
Answer 17. I have no views that would prevent me from following the
holding of Roe v. Wade as modified by Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). If I am
fortunate enough to be confirmed as a federal judge, it would be my
duty to follow the law.
Question 18. We understand the Supreme Court precedent, but what is
your personal view on the issue of abortion?
Answer 18. I have no views that would prevent me from following the
precedents of the Supreme Court and the Seventh Circuit regarding
abortion.
Question 19. We understand the Supreme Court precedent, but what is
your personal view of the issue of the death penalty?
Answer 19. I have no views that would prevent me from following the
law set forth by Congress and the Supreme Court regarding the
imposition of the death penalty.
Question 20. We understand the Supreme Court precedent, but what is
your personal view on the issue of the Second Amendment to the
Constitution?
Answer 20. I have no views that would prevent me from applying the
law as laid down by Congress and the higher courts to a case involving
the Second Amendment.
Question. 21. In Planned Parenthood v. Casey, 505 U.S. 833 (1992),
the Supreme Court held that the government interest in preserving life
must be balanced against a mother's right of privacy and access to
abortion which may not be unduly burdened. Do you believe the ``right
to privacy'' includes the right to take away the life of an unborn
child?
Answer 21. I have no views that would prevent me from following the
precedents of the Supreme Court and the Seventh Circuit regarding
abortion.
Question. 22. Again, I understand the state of the law on the
Supreme Court's interpretation on the issue of abortion, but I am
interested in your personal beliefs on the issue. Do you personally
believe that an unborn child is a human being?
Answer 22. I have no views that would prevent me from following the
precedents of the Supreme Court and the Seventh Circuit regarding
abortion.
Question. 23. Do you believe that the death penalty is
Constitutional?
Answer 23. I have no personal views regarding the death penalty
that would prevent me from following the law regarding the imposition
or upholding the death penalty. The United States Supreme Court has
ruled in Gregg v. State of Georgia, 428 U.S. 153 (1976), that the
Constitution permits the death penalty.
Question. 24. If you were a Supreme Court Justice, under what
circumstances would you vote to overrule a precedent of the Court?
Answer 24. In Planned Parenthood of Southeastern Pennsylvania v.
Casey, the Supreme Court wrote that ``when this Court reexamines a
prior holding, its judgment is customarily informed by a series of
prudential and pragmatic considerations designed to test the
consistency of overruling a prior decision with the ideal of the rule
of law, and to gauge the respective costs of reaffirming and overruling
a prior case.'' The Supreme Court identified five separate factors to
consider in determining whether to overrule precedent, namely, (1)
whether the central rule of the earlier case has proven to be
unworkable (and therefore continuing the rule would be intolerable);
(2) whether there has been reliance on the continuation of the rule in
the earlier case such that overruling it would add a special hardship
to the consequences of overruling and add inequity to the costs of
repudiating the rule; (3) whether related principles of law have
evolved to the extent that they leave the old rule to be a remnant of
an abandoned doctrine; (4) whether the factual assumptions at the heart
of the earlier decision have so changed, or have come to be seen so
differently, as to have robbed the old rule of significant application
or justification; and (5) whether over time the factual assumptions on
which the earlier case rested proved to be untrue. If I were a Supreme
Court justice I would follow this precedent and apply these factors.
Question. 25. Do you consider legislative intent and the testimony
of elected officials in debates leading up to passage of an act? And
what weight do you give legislative intent?
Answer 25. The first rule in construing a statute is to ascertain
the meaning of the language which Congress has enacted. A judge should
not rely on statements of a member of Congress concerning congressional
intent in derogation of the plain meaning of the statute. If that
language is ambiguous, however, or if the meaning is not clear as it
applies to the facts presented in a case, a judge may consider
legislative intent and the testimony of elected officials underlying
passage of the Act. Legislative history, such as that set forth in
Committee reports, is entitled to greater weight where it reflects a
consensus than where it reflects merely the statements of individual
Senators and Representatives.
______
Responses of Joan Humphrey Lefkaw's to Questions From Senator Hatch
Question 1. If a particular judge or court has a high rate of
reversal on appeal, either to the Court of Appeals or to the Supreme
Court, is that a problem? If it is, what can and should be done to
remedy that problem?
Answer 1. A judge who has a high rate of reversal on appeal may
well pose a problem for the administration of justice, both in terms of
dispensing justice to litigants and of consuming an inordinate share of
appellate judicial resources. Such a judge should examine carefully the
opinions of the appellate court in the cases in which the judge has
been reverse to learn where and why errors have occurred so that the
judge may improve and correct his or her performance on the bench.
Question 2. In your view, to what extent. If any, do the rights
protected by the Constitution grow or shrink with changing historical
circumstances?
Answer 2. The rights protected by the Constitution do not grow or
shrink with changing historical circumstances, but from time to time
the Supreme Court may be called upon to interpret a constitutional
right in light of changing historical circumstances. For example, mass
communication in 1789 occurred primarily through newspapers, but today
we have the Internet.
Question 3. Under what circumstances do you believe it appropriate
for a federal court to declare a statute enacted by Congress
unconstitutional?
Answer 3. The Supreme Court recently stated in United States v.
Morrison, ``Due respect for the decisions of a coordinate branch of
Government demands that we invalidate a congressional enactment only
upon a plain showing that Congress has exceeded its constitutional
bounds.'' A court should always presume a statute to be constitutional
and should construe it to avoid a constitutional question. Only where a
statute cannot be reconciled with the clear mandate of the
Constitution, as interpreted by the Supreme Court of the United States,
may it be declared unconstitutional.
Question 4. Please describe in reasonable detail the Supreme
Court's recent decision in United States v. Morrison, 120 S. Ct 1740
(2000), and its 1995 decision, United States v. Lopez, 514 U.S. 549
(1995), explaining to the Committee your understanding of those
decisions, and their holdings regarding congressional power. Some
commentators have accused the Supreme Court of judicial activism
because of its decisions in those case. Do your agree? Please explain.
Answer 4. In Lopez, the Supreme Court held that the Gun-Free School
Zones Act of 1990, 18 U.S.C. Sec. 922(q)(1)(A), which made it a federal
crime to knowingly possess a firearm in a school zone, exceeded
Congress' authority under the Commerce Clause. Likewise, in Morrison,
the Supreme Court held that a provision of the 1994 Violence Against
Women Act, which provided a federal civil remedy for victims of gender-
motivated violence, was beyond Congress' Commerce Clause powers. It
also concluded that Sec. 5 of the Fourteenth Amendment did not provide
authority for a federal cause of action based on gender-motivated
violence.
In Lopez, the Court identified three broad categories of activity
that Congress may regulate under its Commerce Clause power: (1) the use
of channels of interstate commerce, (2) the regulation and protection
of instrumentalities of interstate commerce, or persons or things in
interstate commerce, and (3) activities substantially affecting
interstate commerce. The Court in Lopez, set out a framework for
analyzing whether an activity substantially affects interstate
commerce. The first consideration is whether the Intrastate activity in
question is some sort of economic endeavor that substantially affects
interstate commerce. Second, the Court considered whether the statutes
had an express jurisdictional element which might limit their reach to
a subset of the regulated activity that has an explicit connection with
or effect on interstate commerce. The third consideration is whether
there is legislative history with express findings about the effect of
the activity on interstate commerce. Finally, the Court considered
whether the link between the activities and a substantial effect on
interstate commerce is attenuated. In other words, would the asserted
link effectively obliterate the distinction between national and local
authority. Whether these decisions are examples of judicial activism is
not clear to me, though I am bound to follow these decisions in any
events.
Question 5. In your view, is the use of race, gender or national
origin-based preferences in such areas as employment decisions (hiring,
promotion or layoffs), college admissions and scholarship awards, and
the awarding of government contracts, lawful under the Equal Protection
Clause of the 14th Amendment? Please explain
Answer 5. Under Adarand Constructors v. Pena, 515 U.S. 200 (1995),
state and federal laws that aid racial and minorities are subject to
``strict scrutiny.'' There, the Supreme Court held unconstitutional a
federal affirmative action program that encouraged government
contractors to use ``disadvantaged business enterprises'' and that
rebuttably presumed racial minorities weredisadvantaged. Under Adarand,
such a program can be upheld only if it is designed to remedy past
intentional discrimination and is narrowly tailored to advance a
compelling governmental interest. With respect to gender-based
preferences, the Supreme Court has indicated in the VMI case, United
States v. Virginia, 518 U.S. 515, 533 (1996), that it would not adopt a
strict scrutiny standard but rather an intermediate scrutiny standard.
Question 6. Do you believe that the view of the death penalty taken
by Justices Brennan, Marshall and Blackmun--that the death penalty is
unconstitutional notwithstanding the clear constitutional text
sanctioning it--is a permissible view for a federal judge to hold?
Answer 6. The view that the death penalty is invariably
unconstitutional is inconsistent with the decision of the Supreme Court
in Gregg v. Georgia, 428 U.S. 153 (1976). There the Supreme Court
pointed out that the text of the Constitution itself reflects the
acceptance of the penalty of death, including the reference in the
Fifth Amendment to a ``capital'' crime and to restraints on deprivation
of ``life'' as well as liberty and property. The Supreme Court
concluded. ``We hold that the death penalty is not a form of punishment
that may never be imposed, regardless of the circumstances of the
offense, regardless of the character of the offender, and regardless of
the procedure followed in reaching the decision to impose it.'' In
light of Gregg, it is impermissible for a federal district or appellate
judge to hold a contrary view because such a judge must follow the
rulings of the Supreme Court.
Question 7. Do you personally have any legal or moral beliefs that
would inhibit or prevent you from imposing a death sentence in any
criminal case that might come before you as a federal judge? Please
explain.
Answer 7. I have no legal or moral beliefs that would inhibit or
prevent me from imposing a death sentence in a criminal case before me
where the law required a death sentence.
Question 8. Do you believe that 10, 15 or even 20-year delays
between conviction of a capital offender and execution is too long?
Answer 8. Yes, delays of ten or more years between conviction and
sentencing can undermine the confidence of the public in our system of
justice.
Question 9. Do you believe that once Congress or a State
legislature has made the policy decision that capital punishment is
appropriate, then the federal courts should focus their resources on
resolving capital cases fairly and expeditiously?
Answer 9. Yes. All cases, including capital cases, should be
resolved fairly and expeditiously, in accordance with applicable
statutes.
Question 10. The sentencing of criminal defendants in federal court
is conducted under the federal Sentencing Guidelines. Some have argued
that the Guidelines do not provide enough flexibility for the
sentencing judge, while others have argued that the Guidelines provide
needed consistency in sentencing. What is your view of the federal
Sentencing Guidelines and their application?
Answer 10. Congress developed the Sentencing Guidelines in order to
bring more uniformity to sentencing based on the legislative
determination that disparities in sentencing that are not
distinguishable on the basis of differences in either the magnitude of
the crime or the harm to the victim undermine the public's confidence
in our criminal justice system. Congress has committed to the
Sentencing Commission the ongoing responsibility to monitor and assess
whether the Guidelines provide sufficient consistency and flexibility.
Whether judges should have more or less discretion in sentencing is an
issue committed to the Congress. If I were confirmed I would impose
sentences according to the Sentencing Guidelines.
Question 11. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a federal judge?
Answer 11. Criminal penalties are set by the legislature, and
mandatory minimum penalties are properly a legislative decision. If I
were confirmed as a federal district judge, I would have no reluctance
to impose or uphold mandatory minimum sentences as required by the
statutes and Sentencing Guidelines.
Question 12. What would you do if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision? Or would you apply your own
judgment of the merits? Take, for example, the Supreme Court's recent
decision in United States v. Playboy Entertainment Group, Inc., No. 98-
1682 (decided May 22, 2000), where the Court struck down a provision of
the 1996 Telecommunications Act that was designed to protect children
from exposure to sexually explicit adult programming on cable
television.
Answer 12. If I believed that the Supreme Court or the Seventh
Circuit had decided a case wrongly, I would still be obliged to follow
it. Thee are no circumstances in which a United States district judge
or circuit judge is authorized to refuse to apply a controlling Supreme
Court or appellate court precedent on the basis that the judge believes
the precedent to beflatly wrong. This would include the ruling in
United States v. Playboy Enterprises Group, Inc.
Question 13. Please describe in reasonable detail your
understanding of the case recently argued before the Supreme Court
entitled Dickerson v. United States, which asked whether a defendant's
voluntary confession could be admitted into evidence in the
Government's case in chief under 18 U.S.C. Sec. 3501, even if the
confession was not preceded by the warnings set forth in Miranda v.
Arizona, 384 U.S. 486 (1966). Please explain to the Committee your
understanding of Miranda, section 3501, and the proper role of the
Congress and Courts in establishing rules of evidence and procedure for
federal courts. Also, please state whether you believe the Miranda
decision is an example of judicial activism.
Answer 13. Section 3501 of Title 18, United States Code, provides,
in substantive part, that in a federal prosecution, ``a confession * *
* shall be admissible in evidence if it is voluntarily given.'' Miranda
v. Arizona imposes an exclusionary rule where a confession is given
without specific advice of rights set forth in that decision, including
the right not to make a statement and the right to advice of counsel.
The question presented in United States v. Dickerson, is whether a
confession given without prior Miranda warnings is still admissible
under section 350 if the totality of the circumstances demonstrates
that the confession was voluntarily given.
Both Congress and the courts have a proper role in establishing
rules of evidence and rules of procedure. In general, rules are
generated in the first instance by the Judicial Conference of the
United States, but they must be approved by Congress before they have
the force of law. Of course, there are many instances in which Congress
has initiated rules of procedure and admissibility. Section 3501 is an
example. As a judge, my duty would be to read the cases and, without
characterizing them, follow their holdings in applying them to a case
before me.
Question 14. Please define judicial activism. In your view, is Roe
v. Wade, 410 U.S. 113 (1973), an example of judicial activism?
Answer 14. Judicial activism, to me, occurs when a judge rules
based on his or her own preferred views rather than on a proper
interpretation of the Constitution. Whether an example of judicial
activism or not, I would study Roe v. Wade as modified by Planned
Parenthood v. Casey to ascertain their holdings and, without
characterizing the cases, follow their holdings in ruling on a case
before me. I hold no personal views that would prevent me from
following the Roe and Casey decisions.
Question 15. The Supreme Court, through a process of so-called
selective incorporation, has applied most, if not all, of the
provisions of the Bill of Rights against the States. Thus, for
instance, the First Amendment, which originally was intended to apply
only to the federal government, has been applied to the States. The
Second Amendment, however, which protects the rights of law-abiding
citizens to own firearms in this country, has not. Do you believe that
the Second Amendment ought to be applied to the States?
Answer 15. I do not hold a view of whether the Second Amendment
should apply to the States, but should the Supreme Court or the Seventh
Circuit so hold, I will follow that ruling in any case that might come
before me should I be confirmed as a district judge.
Question 16. If most of the other provisions of the Bill of Rights
apply to the States, why shouldn't the Second Amendment? On what
principled basis would it be appropriate to apply almost all of the
other provisions of the Bill of Rights against the States, but not the
Second Amendment?
Answer 16. I hold no view on the ``selective incorporation'' cases,
but if such a case were before me, I would study those cases, follow
the principles set forth in them and follow the relevant guidance of
the higher courts.
Question 17. The precedents of Circuit Courts are binding on the
district courts within the particular Circuit. Are you committed to
following the precedents of higher courts faithfully and giving them
full force and effect, even if you personally disagree with such
precedents?
Answer 17. I am committed to following the precedents of higher
courts faithfully and to giving them full force and effect, even where
I personally disagree with the precedents.
Question 18. You have stated that, if confirmed, you would be bound
by Supreme Court precedent and the precedent of the Circuit Court of
Appeals over your district or circuit. There may be times, however,
when you will be faced with cases of first impression. What principles
will guide you, or what methods will you employ, in deciding cases of
first impression?
Answer 18. Should I be confirmed as a district judge and should I
be presented with a case of first impression, which happens only
rarely, I would first carefully examine the law on which the claim or
defense was based to be certain that it, in fact, presented a question
of first impression. If it were, and if a question of statutory
construction were presented, I would look for the plain meaning of the
statute. If the statute's meaning was ambiguous or if its applicability
to the facts presented were uncertain, I would examine the legislative
history to see whether it would shed light on the meaning of the
statute. Whether a statutory or non-statutory issue, I would be guided
by analogous reasoning of the United States Supreme Court and the Court
of Appeals for the Seventh Circuit. If I were still unable to resolve
the issue, I would consider the well reasoned opinions of state and
federal courts treating similar issues in reaching my decision.
______
Responses of George Z. Singal to Questions From Senator Smith
Question 1. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If a nominee for any federal
judgeship refuses to answer questions about a Constitutional issue,
should that individual be confirmed?
Answer 1. A nominee should attempt to answer all of a Senator's
questions; however, there may be some questions that a nominee may not
answer due to the obligations of the Code of Judicial Conduct. The
determination of whether to vote to confirm a nominee is, of course,
left to each Senator.
Question 2. Article II, Section 2 of the Constitution states that
the President shall have the power to appoint federal judges with ``the
advice and consent'' of the Senate. If you were a member of the United
States Senate, would you agree that it is difficult to advise and
consent to a nominee when a candidate refuses to answer questions on
Constitutional issues?
Answer 2. Yes, but I would do my best to take the measure of the
nominee based on the person's education, experience, general
background, and the recommendations of people the Senator respects.
Question 3. What is the purpose of the United States Senate in
holding hearings on nominees for the federal bench?
Answer 3. Article II, Section 2 of the Constitution provides for
the ``advise and consent'' of the Senate. A hearing provides a Senator
the ability to personally evaluate the individual and assess his or her
qualifications for the position.
Question 4. Is it possible for a Senator to advise and consent to a
nominee if the nominee simply refers to precedent without explaining
his or her legal analysis?
Answer 4. Yes, a statement by a nominee that he or she would follow
precedent may be taken as indicating that the nominee would follow the
legal analysis of that precedent and apply it to the facts presented by
a particular case.
Question 5. How can I as a Senator advise and consent to a nominee
without answers to Constitutional questions?
Answer 5. A Senator can make a decision as to a nominee's
qualification based upon an examination of a nominee's background,
education, work experience, and recommendations.
Question 6. What questions are legitimate to ask a candidate
without the candidate prejudicing himself or herself?
Answer 6. A Senator has a right to ask the candidate any question.
Questions about a nominee's background, education, work experience, and
commitment to following precedent, among others, can be answered
without the candidate prejudicing himself or herself.
Question 7. Are there any questions that you feel are off limits
for a Senator to ask?
Answer 7. No, there are no questions I believe that are off limits
for a Senator to ask.
Question 8. If a U.S. District Court Judge or U.S. Court of Appeals
Judge concludes that a Supreme Court precedent is flatly contrary to
the Constitution, are there any circumstances under which the Judge may
refuse to apply that precedent to the case before him or her?
Answer 8. A U.S. District Court Judge or U.S. Court of Appeals
Judge is required by oath to follow the precedent set by the United
States Supreme Court, even if the judge were to conclude that the
higher court had erred.
Question 9. If you were a Supreme Court Justice in 1856, what would
you have held in Dred Scot v. Sandford, 60 U.S. (19 How.) 393?
Answer 9. Without having practiced law in that era, and having had
the benefit of the briefs and the oral argument before the court, as
well as discussions with other Supreme Court Justices, I am unable to
determine how I would have held in that case.
Question 10. In Dred Scot v. Sandford, 60 U.S. (19 How.) 393
(1856), the court apparently held, as you well know, there were eight
separate opinions in the case, that black slaves were not citizens of
the United States. How should that precedent be treated by the courts
today?
Answer 10. Dred Scot v. Sandford was ultimately reversed by
amendment to the Constitution and is not binding precedent today.
Question 11. If you were a judge in 1857, would you have been bound
by your Oath and would you have been mandated to follow the binding
precedent of Dred Scot v. Sandford, 60 U.S. (19 How.) 393 (1856)?
Answer 11. Yes, a judge in 1857 would, by his oath of office, be
required to follow that binding precedent.
Question 12. If you were a Supreme Court Justice in 1896, what
would you have held in Plessy v. Fergusen, 163 U.S. 539 (1896)?
Answer 12. Without having practiced law in that era, and having had
the benefit of the briefs and the oral argument before the court, as
well as discussions with other Supreme Court Justices, I am unable to
determine how I would have held in Plessy v. Fergusen.
Question 13. In Plessy v. Fergusen, 163 U.S. 539 (1896), a majority
of the court held as not a violation of the Fourteenth Amendment to the
Constitution a Louisiana statue which provided that all railway
companies provide ``equal but separate accommodations'' for black and
white passengers, imposing criminal penalties for violations by railway
officials. How should that precedent be treated by the Courts?
Answer 13. Plessy v. Fergusen has since been overruled by later
case law and subsequent legislation. Therefore, it should not be
considered binding precedent by the courts.
Question 14. If you were a Supreme Court Justice in 1954, what
would you have held in Brown v. Board of Education, 347 U.S. 483
(1954)?
Answer 14. Without having practiced law in that era, and having had
the benefit of the briefs and the oral argument before the court, as
well as discussions with other Supreme Court Justices, I am unable to
determine how I would have held in Brown v. Board of Education.
Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954),
the court held that the segregation of children in public schools
solely on the basis of race, even though the physical facilities and
other tangible factors may be equal, deprive the children of the
minority group of equal educational opportunities contrary to the
protections contained within the Fourteenth Amendment to the
Constitution. How should that precedent be treated by the Courts?
Answer 15. Brown v. Board of Education, has not been overturned by
subsequent case law or constitutional amendment and is binding on the
lower courts.
Question 16. If you were a Supreme Court Justice in 1973, what
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
Answer 16. Without having practiced law in that era, and having had
the benefit of the briefs and the oral argument before the court, as
well as discussions with other Supreme Court Justices, I am unable to
determine how I would have held in Roe v. Wade.
Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held
that a Texas statue which proscribed an abortion except when necessary
to save the life of the mother was a violation of the due process
clause of the Fourteenth Amendment as an unjustified deprivation of
liberty. Do you agree with the legal reasoning of the holding or of the
Justice Renhquist dissent in that case?
Answer 17. The holding in Roe v. Wade, as modified in Planned
Parenthood v. Casey is binding on the lower courts. Lower court judges
must follow the majority's holding in any precedential area.
Question 18. We understand the Supreme Court precedent, but what is
your personal view on the issue of abortion?
Answer 18. I have no personal beliefs preventing me from following
the binding precedent of the Supreme Court on this issue.
Question 19. We understand the Supreme Court precedent, but what is
your personal view on the issue of the death penalty?
Answer 19. I have no personal beliefs that would prevent me from
applying or upholding the death penalty in accordance with the law.
Question 20. We understand the Supreme Court precedent, but what is
your personal view on the issue of the Second Amendment to the
Constitution?
Answer 20. I have no beliefs that would prevent me from following
binding precedent set forth in my Circuit or the Supreme Court with
regard to the Second Amendment.
Question 21. In Planned Parenthood v. Casey (505 U.S. 833 (1992)),
the Supreme Court held that the government interest in preserving life
must be balanced against a mother's right of privacy and access to
abortion which may not be unduly burdened. Do you believe the ``right
to privacy'' includes the right to take away the life of an unborn
child?
Answer 21. This issue has been addressed by the Supreme Court in
Casey. I have no personal beliefs that would prevent me from following
binding Supreme Court and Circuit precedent on this issue.
Question 22. Again, I understand the state of the law on the
Supreme Court's interpretation on the issue of abortion, but I am
interested in your personal beliefs on the issue, do you personally
believe that an unborn child is a human being?
Answer 22. I have no personal beliefs that would prevent me from
following binding precedent regarding this issue.
Question 23. Do you believe that the death penalty is
constitutional?
Answer 23. I have no personal beliefs that prevent me from
following the Supreme Court's precedent that the death penalty is
constitutional.
Question 24. If you were a Supreme Court Justice, under what
circumstances would you vote to overrule a precedent of the Court?
Answer 24. Under the principle of stare decisis, courts are
obligated to follow precedent. In those rare circumstances in which the
Supreme Court considers overruling a previous decision, the Supreme
Court looks to its precedent in this regard, such as Planned Parenthood
v. Casey, 505 U.S. 833 (1992). If I were a Supreme Court Justice, I
would follow this precedent and apply the factors listed in the Casey
decision.
Question 25. Do you consider legislative intent and the testimony
of elected officials in debates leading up to passage of an act? And
what weight do you give legislative intent?
Answer 25. In determining the meaning of legislation, a judge
should look to the plain language of the statute. If the language is
ambiguous, legislative intent can be derived from a number of sources
such as committee reports. The weight to be given to committee reports
and statements of individual legislators is determined by prior
precedent. I would view with caution the statements of an individual
legislator because they may not reflect the consensus of the
legislative body as a whole.
______
Responses of George Z. Singal to Questions From Senator Hatch
Question 1. If a particular judge or court has a high rate of
reversal on appeal, either to the Court of Appeals of to the Supreme
Court, is that a problem? If it is, what can and should be done to
remedy that problem?
Answer 1. Yes, it would be a problem for a particular judge or
court to have a high rate of reversal on appeal. If a Federal District
Court Judge, for example, found that he or she had such a problem, the
judge could remedy the problem by carefully reviewing each reversal,
scrupulously following the holding and reasoning of the higher court,
and thoroughly reading all applicable precedents of the Supreme Court
and the Court of Appeals.
Question 2. In your review, to what extent, if any, do the rights
protected by the Constitution grow or shrink with changing historical
circumstances?
Answer 2. The rights protected by the Constitution are reflected in
the plain language of the document. Supreme Court precedents
interpreting these rights may change over time due to the application
of the law to new subjects, such as new technologies. However, the job
of a District Court Judge is to follow precedent and not to create new
rights or otherwise legislate from the bench.
Question 3. Under what circumstances do you believe it appropriate
for a federal court to declare a statute enacted by Congress
unconstitutional?
Answer 3. Only rarely and when compelled by precedent may a federal
court declare a statute unconstitutional. A federal court should make
every effort to interpret a statute in a way to permit it to be
constitutional, and a court should be very hesitant to rule otherwise.
Statutes are entitled to a presumption of constitutionality.
Question 4. Please describe in reasonable detail the Supreme
Court's recent decision in United States v. Morrison 120 S. Ct. 1740
(2000), and its 1995 decision United States v. Lopez 514 U.S. 548
(1995), explaining to the Committee your understanding of those
decisions, and their holdings regrading congressional power. Some
commentators have accused the Supreme Court of judicial activism
because of its decisions in those cases. Do you agree? Please explain.
Answer 4. In United States v. Morrison 120 S. Ct. 1740 (2000), the
Supreme Court held that a provision of the Violence Against Women Act
which created a federal cause of action for victims of sexual assault,
exceeded Congress's power under the Commerce Clause.
In United States v. Lopez 514 U.S. 548 (1995), the Supreme Court
held that the Gun-free School Zone Act, which made it a federal crime
to knowingly carry a firearm in a school zone, exceeded Congress' power
under the Commerce Clause.
In both cases the Supreme Court found that the intrastate activity
at issue did not ``substantially affect'' interstate commerce, and thus
Congress could not enact the laws.
I would not characterize these decisions as activist; I do not read
Supreme Court decisions with a view to determine if they are examples
of activism, but to determine what they hold. If confirmed, I would be
obligated to follow and I would follow these decisions and all
precedents of higher courts.
Question 5. In your view, is the use of race, gender or national
origin-based preferences in such areas as employment decisions (hiring,
promotion or layoffs), college admissions and scholarship awards, and
the awarding of government contracts, lawful under the Equal Protection
Clause of the 14th Amendment? Please explain.
Answer 5. In Adarand Constructor v. Pena, 515 U.S. 200 (1995), the
Supreme Court held that the use of race-based or national origin-based
preferences in governmental program or decisions is subject to strict
scrutiny review, must serve a compelling governmental interest, and be
narrowly tailored to serve that interest. In U.S. v. Virginia 518 U.S.
515 (1996), the Supreme Court held that the ``intermediate scrutiny''
standard applies to gender-based preferences in governmental programs
and decisions. I have no beliefs that prevent me from following this
precedent.
Question 6. Do you believe that the view of the death penalty taken
by Justices Brennan, Marshall and Blackman--that the death penalty is
unconstitutional notwithstanding the clear constitutional text
sanctioning it--is a permissible view of a federal judge to hold?
Answer 6. No, The Supreme Court has ruled that the death penalty is
constitutional and has noted that it was contemplated by the plain
language of the Constitution. I have no beliefs that prevent me from
following this precedent.
Question 7. Do you personally have any legal or moral beliefs that
would inhibit or prevent you from imposing a death sentence in any
criminal case that might come before you as a federal judge? Please
explain.
Answer 7. I have no legal or moral beliefs that would inhibit or
prevent me from imposing a death sentence in any applicable criminal
case that might come before me as a federal judge.
Question 8. Do you believe that 10, 15 or even 20-year delays
between a conviction of a capital offender and execution is too long?
Answer 8. Yes, delays of 10 to 20 years are too long. There is no
place in our system for frivolous appeals or undue delay.
Question 9. Do you believe that once Congress or a State
legislature has made the policy decision that capital punishment is
appropriate, then the federal courts should focus their resources on
resolving capital cases fairly and expeditiously?
Answer 9. Yes, I believe that all courts should resolve capital
cases fairly and expeditiously.
Question 10. The sentencing of criminal defendants in federal
courts is conducted under the Federal Sentencing Guidelines. Some have
argued that the Guidelines do not provide enough flexibility for the
sentencing judge, while others have argued that the Guidelines provide
needed consistency in sentencing. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 10. I recognize that Congress has the power to determine the
Federal Sentencing Guidelines, which promote both consistency and
predictability in sentencing. I would have no reluctance to apply them.
Question 11. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a federal judge?
Answer 11. It is fully within the power of Congress to legislate
mandatory minimum sentences. I would have no reluctance as a judge to
impose them.
Question 12. What would you do if you believed the Supreme or the
Court of Appeals had seriously erred in rendering a decision? Would you
nevertheless apply that decision? Or would you apply your own best
judgment of the merits? Take, for example, the Supreme Court's recent
decision in United States v. Playboy Entertainment Group Inc. No. 98-
1682 (decided May 22, 2000), where the Court struck down a provision of
the 1996 Telecommunications Act that was designed to protect children
from exposure to sexually implicit adult programming on cable
television.
Answer 12. Even if I believe the Supreme Court or the Court of
Appeals had seriously erred in rendering a decision, I would be
obligated to follow and would follow the precedent in the applicable
case. A federal District Court Judge is required by oath to follow
binding precedent as set forth by a higher Court, regardless of the
judge's personal views. I have no beliefs that would prevent me from
doing otherwise regarding the Playboy case or any other binding
precedent.
Question 13. Please describe in reasonable detail your
understanding of the case recently argued before the Supreme Court
entitled Dickerson v. United States, which asked whether a defendant's
voluntary confession could be admitted into evidence in the
Government's case in chief under 18 U.S.C. Sec. 3501, even if the
confession was not preceded by the warnings set forth in Miranda v.
Arizona 384 U.S. 486 (1966)? Please explain to the Committee your
understanding of Miranda, section 3501, and the proper role of the
Congress and the Courts in establishing rules of evidence and procedure
for federal courts. Also, please state whether you believe the Miranda
decision is an example of judicial activism.
Answer 13. Miranda v. Arizona 384 U.S. 486 (1966), remains binding
on lower courts, but the Supreme Court is considering a challenge to
the case and I would follow the holding of the Supreme Court on this
issue, whatever the holding is. The question presented to the Supreme
Court in Dickerson v. United States is whether 18 U.S.C. Sec. 3501
(which takes a totality of the circumstances approach) controls the
determination regarding the admissibility of a confession, or whether
the Supreme Court's decision in Miranda controls that determination. In
Dickerson, the Supreme Court is considering whether the rubric of
warnings in Miranda is constitutionally mandated and, if not, whether
Congress can substitute its judgment, i.e., 18 U.S.C. Sec. 3501, for
the Court-generated rule. I have no beliefs regarding Miranda that
would prevent me from following precedent in this area.
Question 14. Please define judicial activism. In your view, is Roe
v. Wade 410 U.S. 113 (1973) an example of judicial activism?
Answer 14. Judicial activism has been defined as judges
``legislating'' for the public. The holding in Roe v. Wade as modified
in Planned Parenthood v. Casey is binding on the lower courts. Lower
court judges must follow the majority's holding in any precedential
area. I have no beliefs that would prevent me from following Roe v.
Wade as modified by Planned Parenthood v. Casey.
Question 15. The Supreme Court, through a process of so-called
selective incorporation, has applied most, if not all, of the
provisions of the Bill of Rights against the States. Thus, for
instance, the First Amendment, which originally was intended to apply
only to the federal government, has been applied to the States. The
Second Amendment, however, which protects the rights of law-abiding
citizens to own firearms in this country, has not. Do you believe that
the Second Amendment ought to be applied to the States?
Answer 15. If the Supreme Court were to find that the Second
Amendment applied to the states, I would be obligated to follow and
would follow that precedent. I have no beliefs that would prevent me
from following binding precedent relative to the Second Amendment.
Question 16. If most of the other provisions of the Bill of Rights
apply to the States, why shouldn't the Second Amendment? On what
principled basis would it be appropriate to apply almost all of the
other provisions of the Bill of Rights against the States, but not the
Second Amendment?
Answer 16. I have no view about whether or not the Second Amendment
should apply to the states, but I would follow the determination of a
higher court on this issue. I have no beliefs that would prevent me
from following binding precedent relative to the Second Amendment.
Question 17. The precedents of Circuit Courts are binding on the
district courts within the particular Circuit. Are you committed to
following the precedents of higher courts faithfully and giving them
full force and effect, even if you personally disagree with such
precedents?
Answer 17. Yes, I am committed to following the precedents of
higher courts faithfully and giving them full force and effect, even if
I were to personally disagree.
Question 18. You have stated that, if confirmed, you would be bound
by Supreme Court precedent and the precedent of the Circuit Court of
Appeals over your district or circuit. There may be times, however,
when you will be faced with cases of first impression. What principles
will guide you, or what methods will you employ, in deciding cases of
first impression?
Answer 18. It is rare that a Federal District Court determines a
case of first impression. I would first look to the plain language of
the statute and then would look to analogous case law from the Supreme
court and the Circuit Courts of Appeal and apply that case law.
NOMINATIONS OF GLENN A. FINE TO BE INSPECTOR GENERAL, U.S. DEPARTMENT
OF JUSTICE; DENNIS M. CAVANAUGH, JAMES S. MOODY, JR., GREGORY A.
PRESNELL, AND JOHN E. STEELE (U.S. DISTRICT JUDGES)
---------- -
- -
WEDNESDAY, JULY 12, 2000
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:10 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Bob Smith,
presiding.
Also present: Senator Torricelli.
OPENING STATEMENT OF HON. ROBERT SMITH, A U.S. SENATOR FROM THE
STATE OF NEW HAMPSHIRE
Senator Smith. The hearing will come to order. Senator
Torricelli is on his way, and I thought in the interests of
time I would just begin the process.
Today, the Judiciary Committee is holding its seventh
nominations hearing in the second session of the 106th
Congress. That was a question, by the way, last night, the
$500,000 question on ``The Millionaire,'' which Congress were
we now in. So I am assuming everybody in this room would have
known the answer.
At this hearing, we will consider the nominations of our
individuals who have been nominated by the President to be
Federal judges, and one individual to be an official with the
Department of Justice.
We will have three panels of witnesses this afternoon. The
first will consist of the sponsors of the nominees, who will
give brief statements on behalf of their nominees. The second
panel will consist of Glenn A. Fine, of Maryland, to be
Inspector General of the Department of Justice.
The third panel will consist of the four district court
nominees--Judge Dennis M. Cavanaugh, of New Jersey, to be U.S.
District Judge for the District of New Jersey; Judge James S.
Moody, Jr., of Florida, to be U.S. District Judge for the
Middle District of Florida; attorney Gregory A. Presnell, of
Florida, to be U.S. District Judge for the Middle District of
Florida; and Judge John E. Steele, of Florida, to be U.S.
District Judge for the Middle District of Florida.
Before we turn to the panels, I would yield to the ranking
member, but in the interests of time, while he still not here,
let me also introduce the Senators who will be testifying here
this afternoon on behalf of their respective nominees--Senator
Frank Lautenberg, Senator Bob Graham, and Senator Connie Mack.
So why don't we come on up, gentlemen? Let's see. Who is
the senior man here? Lautenberg, right?
Senator Lautenberg. You can tell by the hair color.
Senator Smith. Senator Lautenberg.
STATEMENT OF HON. FRANK LAUTENBERG, A U.S. SENATOR FROM THE
STATE OF NEW JERSEY
Senator Lautenberg. Thanks very much, Senator Smith. I want
to thank you in your role as chairman here for bringing Dennis
Cavanaugh's nomination up for consideration before the
Judiciary Committee. I appreciate your efforts, which will
ensure that the Federal bench in New Jersey is at full
strength.
As you may know, Mr. Chairman, Dennis Cavanaugh has been a
magistrate judge since 1993. Over the past seven years, he has
handled a number of difficult and complex cases. He has
consistently demonstrated efficiency, fairness, and compassion.
We have come to expect that from our Federal jurists, and he
will be a terrific asset as a district court judge.
Mr. Chairman, Mr. Cavanaugh also has a strong work ethic,
and I know him very well. He is a New Jersey fellow through and
through, and he has got the kind of work ethic that is
essential for judges who are called on to handle literally
hundreds of cases at a time. His current duties include
managing all of the civil cases assigned to two active district
judges and half of the civil cases assigned to a senior
district judge. So he has got a workload that totals more than
600 cases.
Magistrate Cavanaugh's legal career includes years of
public service as a public defender, from 1973 until 1977. Then
he began private practice as a trial attorney, handling civil
litigation and some criminal cases, and he has been a partner
with several distinguished firms in New Jersey. His clients
have included small businesses, educational institutions,
insurance companies, public entities, and the Police Benevolent
Association. His experience with such a broad range of
interests is one of the reasons that he has performed so
effectively as a magistrate judge.
Magistrate Cavanaugh has also done his part to help ease
the caseloads that overwhelm other judges. He volunteered for
pro bono assignments at the superior court in Essex County,
where there was a severe backlog of civil cases. Additionally,
he has been handling bail hearings, settlement conferences, and
a wide range of other judicial duties. He has also found time
to teach as an adjunct professor at his alma mater, Seton Hall
University School of Law, in Newark.
And it is that kind of experience and energy that has made
New Jersey's Federal bench one of the most impressive in the
country. Magistrate Cavanaugh's entire career history reflects
the integrity and dedication that we want to see in our Federal
judges, and I know his service on the district court bench
would be equally outstanding.
As I said earlier, Mr. Chairman, if the Senate confirms
Magistrate Cavanaugh, there will be no vacancies on the New
Jersey District Court, and we would really like to see the
court at full strength. There had been a serious backlog in
cases. They are beginning to catch up, and I hope that you are
going to be able to help move this nomination forward.
We also are interested in moving the nomination of Stephen
Orlofsky, a district court judge, who has been nominated to the
Third Circuit Court of Appeals. If the Senate can act
expeditiously and confirm these two nominees, then all of the
New Jersey seats on the Federal bench will be filled, and we
are grateful for that.
Mr. Chairman, Dennis Cavanaugh is here with his wife,
Linda. We know her very well. She has had many important
assignments, political and governmental, in the State of New
Jersey. They are a New Jersey family, and I am honored to bring
someone like Dennis Cavanaugh before the committee, hopefully
before the full Senate, and to see him confirmed.
I thank you, Mr. Chairman.
Senator Smith. Thank you, Senator Lautenberg.
Senator Graham.
STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF
FLORIDA
Senator Graham. Thank you, Mr. Chairman, and I would like
to ask consent to file my full statement. In the interest of
time, I will summarize.
Senator Smith. Without objection.
Senator Graham. Mr. Chairman, we appreciate your and
Senator Torricelli's courtesy in scheduling this hearing and
doing it on such a prompt basis, approximately 30 days after
the President has nominated these three outstanding Floridians
for appointment to the U.S. Federal bench in the Middle of
District of Florida.
It is a tremendous privilege to be able to introduce these
three impressive nominees for your consideration. Gregory
Presnell, a private attorney in Orlando, United States
Magistrate John Steele, and Florida State Circuit Judge James
Moody have been nominated to the United States District Court
for the Middle District of Florida, and they have the strong
support of Senator Mack and myself.
These three highly qualified nominees were recommended by a
non-political screening committee comprised of a diverse group
of Floridians, lawyers and nonlawyers, who evaluated these
three individuals as part of a much larger group of highly
qualified attorneys and judges who had expressed an interest in
serving in the Federal judiciary. We jointly recommended these
nominations to the President and are very appreciative that now
they have been nominated. We commend them for your
confirmation.
The three nominees are accompanied by family members today,
and I would like to recognize some of the family members. Mr.
Gregory Presnell is joined by his wife, Cecelia Bonifay.
Cecelia, would you please stand?
Ms. Bonifay. Good afternoon.
Senator Smith. Good afternoon.
Senator Graham. Cecelia is also an attorney; and three
sons--Pearce, a real estate financial analyst; Bryan, a
resident of Atlanta; and Russell, who has just graduated from
James Madison University.
Judge Moody is accompanied by his wife, Kelli, and three of
his children--Jamey and Ryan, who are students at the
University of Florida, and Tricia who is a student at the
University of South Florida.
Senator Smith. Welcome.
Senator Graham. Judge Steele's wife, Lynda Marie, is
unfortunately unable to be with us today.
I would like to take this opportunity, since it could be
the last in such a setting of introducing judicial nominees, to
thank my colleague and good friend, Senator Mack, for the
extremely collaborative way in which we have worked over his 12
years in the Senate on judicial nominations.
We have approached them from the standpoint that our
responsibility is to look for judicial merit, and have worked
to accomplish that objective and to recommend to the President,
and he to nominate to you, the highest quality potential
jurists. And I believe the three men who are with us today are
illustrative of the results of that collaboration, for which I
wish to extend my deepest gratitude to Senator Mack, and hope
that whatever happens in November that we can continue this
pattern in January.
Senator Mack. Does that suggest a role for me that I am not
aware of? [Laughter.]
Senator Smith. Or for him. You never know.
Senator Mack. Good point.
Senator Graham. The three nominees that we have today are a
product of that collaboration. The Middle District of Florida
has been one of the most overburdened districts of the 95
districts in the U.S. Federal judiciary. It has the third
highest case filings, and because of the character of the
cases, particularly the heavy cases in the criminal division,
and of those a heavy caseload of drug related cases, they tend
to be complex and very demanding on the jurist.
This action, which was taken in 1999 to authorize four
additional positions and which I hope soon we will fill three
of those four new authorized positions, will be the first
expansion of the Middle District of Florida in many years.
With that background, Mr. Chairman, and with some brevity
because of the time constraints, I would like to briefly
introduce the three nominees.
Judge James Moody is a native of Florida, from a prominent
family. He received both his undergraduate and law degrees from
the University of Florida. He practiced law with the same firm
for 22 years before becoming a circuit judge in 1995. I am
confident that Judge Moody will bring his experience as a State
judge to deal with the considerable caseload that he will face
now as a Federal district judge, assuming he is confirmed.
Judge Moody has served his profession in a variety of important
positions, as he has served his community.
Judge Steele currently serves as a United States magistrate
judge. He is a graduate of the University of Detroit with a
degree in urban studies, as well as a juris doctorate. Judge
Steele has nearly completed a master's degree in criminal
justice at the University of North Florida, in Jacksonville.
Prior to his judgeship, John Steele served as an Assistant
United States Attorney in both Florida andMichigan, and
practiced commercial litigation with a Jacksonville firm. He, too, has
a broad and deep commitment to his profession and community, as
evidenced by a number of important civic positions, including teaching
law at Florida Coastal School of Law in Jacksonville.
Gregory Presnell is a graduate of the University of William
and Mary, continued his studies at the University of Florida
School of Law, where he graduated with high honors in 1964.
Except for a tour of duty in the United States Army, Mr.
Presnell has been employed continuously with one of Florida's
most prominent law firms, Akerman Senterfitt, where he
specialized in business litigation. He, too, has had a broad
commitment to his community, with a long list of outstanding
areas of community service which will be included in my full
statement.
Mr. Chairman, I am confident that these three nominees will
continue the pattern of public service and sound legal judgment
that they have demonstrated thus far and which led to the
commission's recommendation and the President's nomination. I
appreciate the committee's consideration of these nominees to
one of the largest and busiest judicial circuits in our
country. I urge their prompt confirmation.
Thank you.
Senator Smith. Thank you very much, Senator Graham.
Senator Mack.
STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM THE STATE OF
FLORIDA
Senator Mack. Thank you very much, Mr. Chairman. Before I
make my comments with respect to the three nominees, let me
just say a couple of thank yous. I want to say thanks to you,
representing the full committee, for the incredible sensitivity
that I believe the committee has shown to the needs of the
State of Florida.
We have made demand after demand after demand over the
years. We are a growing State. We have had many vacancies to
fill, and I think that, again, the committee has been extremely
sensitive to the needs of my State. Both Senator Graham and I
want you to know how much we appreciate the work that has been
done, and I say that not just for the members, but for the
staff as well.
And the second thank you--and Senator Graham really
triggered this when he said that this is possibly the last time
that I will be before the committee recommending individuals
for judgeships. What a pleasure it has been to work with
Senator Graham, and for his openness and willingness to allow
me to play the type of role that I played in the selection of
these nominees. I think that we both benefitted from this
process, as well as our State. So I again thank you for your
confidence in allowing me to play the role that I have played.
Mr. Chairman, I am delighted and honored to appear before
the Judiciary Committee to introduce three judicial nominees
for the Middle District of Florida. Each of the nominees that
will be before you today are extremely qualified and well
respected in their professions. I would like to highlight a few
facts that I find important about each of the nominees.
First, Judge James Moody. He is currently a circuit court
judge for the Thirteenth Judicial Circuit for Hillsborough
County, Florida. He has extensive experience in the practice of
law, spending a total of 22 years as an attorney and partner in
a law firm, handling both civil and criminal cases. In
addition, Judge Moody has a long history of serving his
community through his work with the pro bono activities of Bay
Area Legal Services. He donated over 110 pro bono hours before
taking the bench in 1995. And as President of the Hillsborough
County Bar Association, he increased the number of lawyers
participating in pro bono projects.
Next, Gregory Presnell, who is currently the senior partner
in the litigation department of the prominent firm of Akerman,
Senterfitt, and Eidson, in Orlando, Florida. He is admired in
legal circles and is one of only 203 lawyers certified by the
Florida Bar in business litigation. Mr. Presnell was the
youngest President of the Orange County Bar Association, and
during his tenure created Greater Orlando Legal Services, which
provides legal aid to the indigent. In addition, Mr. Presnell
was President of the Board of Florida Legal Services, which was
established by the Florida Bar to coordinate pro bono services
statewide.
And, finally, Judge John Steele, who has served as a United
States Magistrate Judge for the Middle District for the past
nine years. Serving as an assistant prosecuting attorney, an
Assistant United States Attorney, and as the chairman of the
litigation department in a Jacksonville, Florida, law firm, Mr.
Steele has been involved in complex criminal and civil cases on
a State and Federal level throughout his career.
Mr. Steele has taken time out of his busy schedule to teach
a class on Federal courts as an adjunct professor at the
Florida Coastal School of Law. And as a member of the Civil
Rules Committee of the Federal Magistrate Judges Association,
Mr. Steele has reviewed and made comments on proposed changes
to the Federal Rules of Civil Procedure.
These nominees are excellent candidates with exemplary
credentials, and I know that they will take their lifetime
appointments to the Federal bench seriously and provide the
community with sound legal decisions. So, Mr. Chairman, I
encourage this committee and the full Senate to consider these
three nominations favorably.
Thank you.
Senator Smith. Thank you, Senator Mack.
Senator Torricelli is here in a dual role as an advocate
for Judge Cavanaugh and a member of the committee. So, welcome.
Senator Torricelli. Thank you, Mr. Chairman. Mr. Chairman,
I would like, with your permission, to have statements entered
into the record by Senator Leahy, Senator Kohl, and Senator
Feingold at this point in the record.
Senator Smith. Without objection, so ordered.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the
State of Vermont
While I am glad to see the Committee moving forward with a few of
the many qualified judicial nominees to fill the scores of vacancies
that continue to plague our federal courts, I am disappointed that
there are no nominees to the Court of Appeals included in this hearing.
I have said since the beginning of this year that the American people
should measure our progress by our treatment of the many qualified
nominees, outstanding women and minorities, to the Court of Appeals
around the country. The Committee and the Senate are falling well short
of the mark.
With 21 vacancies on the federal appellate courts across the
country, and nearly half of the total judicial emergency vacancies in
the federal courts system in our appellate courts, our Courts of
Appeals are being denied the resources that they need. Their ability to
administer justice for the American people is being hurt. There
continue to be multiple vacancies on the Fourth, Fifth, Sixth, Ninth,
Tenth and District of Columbia Circuits. The vacancy rate for our
Courts of Appeals is more than 11 percent nationwide--and that does not
begin to take into account the additional judgeships requested by the
Judicial Conference to handle their increased workloads. If we added
the 11 additional appellate judges being requested, the vacancy rate
would be 16 percent. Still, not a single qualified candidate for one of
these vacancies on our federal appellate courts is being heard today.
At our first Executive Business Meeting of the year, I noted the
opportunity we had to make bipartisan strides toward easing the vacancy
crisis in our nation's federal courts. I believed that a confirmation
total of 65 by the end of the year was achievable if we made the
effort, exhibited the commitment, and did the work that was needed to
be done. I urged that we proceed promptly with confirmations of a
number of outstanding nominations to the Court of Appeals, including
qualified minority and women candidates. Unfortunately, that is not
what has happened.
Just as there was no appellate court nominee included in the April
confirmation hearing, there is no appellate court nominee included
today. Indeed, this Committee has not reported a nomination to a Court
of Appeals vacancy since April 12, and it has reported only two all
year. The Committee has yet to report the nomination of Allen Snyder to
the District of Columbia Circuit, although his hearing was eight weeks
ago; the nomination of Bonnie Campbell to the Eighth Circuit, although
her hearing was six weeks ago; or the nomination of Judge Johnnie
Rawlinson, although her hearing was four weeks ago. Left waiting for a
hearing are a number of outstanding nominees, including Judge Helene
White for a judicial emergency vacancy in the Sixth Circuit; Judge
James Wynn, Jr., for a judicial emergency vacancy in the Fourth
Circuit; Kathleen McCree Lewis, another outstanding nominee to the
multiple vacancies on the Sixth Circuit; Enrique Moreno, for a judicial
emergency vacancy in the Fifth Circuit; Elena Katgan, to one of the
multiple vacancies on the District of Columbia Circuit; and Roger L.
Gregory, an outstanding nominee to another judicial emergency vacancy
in the Fourth Circuit.
I deeply regret that the Senate adjourned last November and left
the Fifth Circuit to deal with the crisis in the federal administration
of justice in Texas, Louisiana and Mississippi without the resources
that it desperately needs. It is a situation that I wished we had
confronted by expediting consideration of nominations to that Court
last year. I still hope that the Senate will consider them this year to
help that Circuit.
I continue to urge the Senate to meet its responsibilities to all
nominees, including women and minorities. That all of these highly
qualified nominees are being needlessly delayed is most regrettable.
The Senate should join with the President to confirm these well-
qualified, diverse and fair-minded nominees to fulfill the needs of the
federal courts around the country.
During the Committee's business meeting on June 27, Chairman Hatch
noted that the Senate has confirmed seven nominees to the Courts of
Appeals this year--as if we had done our job and need do no more. What
he failed to note is that all seven were holdovers who had been
nominated in prior years. Five of the seven were reported to the Senate
for action before this year, and two had to be reported twice before
the Senate would vote on them. The Senate took more than 49 months to
confirm Judge Richard Paez, who was nominated back in January 1996, and
more than 26 months to confirm Marsha Berzon; who was nominated in
January 1998. Tim Dyk, who was nominated in April 1998, was confirmed
after more than two years. This is hardly a record of prompt action of
which anyone can be proud.
Chairman Hatch then compared this year's total against totals from
other presidential election years. The only year to which this can be
favorably compared was 1996 when the Republican majority in the Senate
refused to confirm even a single appellate court judge to the federal
bench. Again, that is hardly a comparison in which to take pride. Let
us compare to the year 1992, in which a Democratic majority in the
Senate confirmed 11 Court of Appeals nominees during a Republican
president's last year in office among the 66 judicial confirmations for
the year. That year, the Committee held three hearings in July, two in
August, and a final hearing for judicial nominees in September. The
seven judicial nominees included in the September 24 hearing were all
confirmed before adjournment that year--including a Court of Appeals
nominee. We have a long way to go before we can think about resting on
any laurels.
Having begun so slowly ion the first half of this year, we have
much more to do before the Senate takes its final action on judicial
nominees this year. We should be considering 20 to 30 more judges this
year, including at least another half dozen for the Court of Appeals.
We cannot afford to follow the ``Thurmond Rule'' and stop acting on
these nominees now in anticipation of the presidential election in
November. We must use all the time until adjournment to remedy the
vacancies that have been perpetuated on the courts to the detriment of
the American people and the administration of justice. That should be a
top priority for the Senate for the rest of this year. In the last
three months in session in 1992, between July 12 and October 8, 1992,
the Senate confirmed 32 judicial nominations. I will work with Chairman
Hatch to match that record.
One of our most important constitutional responsibilities as United
States Senators is to advise and consent on the scores of judicial
nominations sent to us to fill the vacancies on the federal courts
around the country. I look forward to our next confirmation hearing and
to the inclusion of qualified candidates for some of the many vacancies
on our Federal Court of Appeals.
[The prepared statement of Senator Kohl follows:]
Prepared Statement of Hon. Herbert Kohl, a U.S. Senator, From the State
of Wisconsin
Thank you, Mr. Chairman.
I just want to voice my support for Glenn Fine, who will truly be
an outstanding Inspector General at the Department of Justice. As you
know, the Inspector General is charged with investigating waste, fraud,
abuse and corruption. As such, it is a position of critical importance
and so we need to fill it as soon as possible--hopefully before the
August recess--to ensure accountable and effective oversight of the
DOJ.
Mr. Fine has been dealing with corruption ever since the Harvard-
Boston College basketball game on December 16, 1978, in which he scored
19 points and had 14 assists--perhaps his best performance in college--
only to discover later that this particular game was part of a
notorious point-shaving scandal. No doubt this first-hand experience
drove him in his later quest to weed out corruption at the Department
of Justice.
More seriously, though, Mr. Fine has served in a variety of
professional roles and always in an exemplary fashion. He is currently
the Director of the Special Investigations and Review Unit in the
Department of Justice's Office of the Inspector General, where he has
supervised a variety of sensitive internal investigations, including
the FBI's handling of the Aldrich Ames case. He also worked as an
Assistant U.S. Attorney for the District of Columbia, where he
prosecuted more than 35 criminal jury trials. His academic credentials
are stellar as well. He is a Rhodes Scholar and he was graduated magna
cum laude from Harvard Law School. Finally, though this is a political
appointment, Mr. Fine is non-partisan--exactly the type of appointee
that a Republican President might very well consider keeping on. He
worked as an Assistant U.S. Attorney during the Reagan and Bush
administrations, and has never been involved in a political campaign.
I know that we are rapidly entering the autumn of the nomination
season, but a position as important as the Inspector General deserves
to be filled without delay and a candidate as outstanding as Mr. Fine
merits speedy confirmation.
[The prepared statement of Senator Feingold follows:]
Prepared Statement of Hon. Russell D. Feingold, a U.S. Senator From the
State of Wisconsin
I am pleased to support the nomination of Glenn A. Fine to be
Inspector General at the Department of Justice. Mr. Fine has already
had a distinguished career, serving as an Assistant United States
Attorney for a number of years, as an attorney in private practice and
most recently as the Director of the Department's Special
Investigations and Review Unit. His academic record is superb,
including degrees from Harvard College, Harvard Law School, and Oxford
University, where he was a Rhodes Scholar. I note also his six years of
volunteer service with the D.C. Board of Professional Responsibility
where he adjudicated disciplinary complaints against lawyers charged
with violations of the Bar's Rules of Professional Conduct.
I am informed by people whose judgment I respect that Mr. Fine has
served with distinction at the Department in a difficult and sensitive
position and I have confidence that he will serve with equal skill and
judgment as the Department's Inspector General. I am pleased that the
Committee is holding this hearing on Mr. Fine's nomination and hope
that he will be rapidly confirmed by the full Senate.
Senator Torricelli. Mr. Chairman, it would be my hope to
participate in introducing Mr. Fine to the committee and then
Judge Cavanaugh, but would prefer to do so immediately before
their statements, if that were possible.
Senator Smith. Certainly.
I thank my colleagues for being here.
Senator Mack. Thank you, Mr. Chairman.
Senator Smith. Mr. Fine, if you could come up, please, I
guess the first order of business is to swear you in. So we
might as well do that, I guess.
Do you swear that the testimony you shall give in this
hearing shall be the truth, the whole truth, and nothing but
the truth so help you God?
Mr. Fine. I do.
STATEMENT OF HON. ROBERT TORRICELLI, A U.S. SENATOR FROM THE
STATE OF NEW JERSEY
Senator Torricelli. Mr. Chairman, if I could at this point,
with your permission I would like to introduce the committee to
Glenn Fine, of Maryland, who has been nominated for the
position in the Department of Justice of Inspector General.
Mr. Fine is currently working as a counsel in the Inspector
General's office. The committee should note the extraordinary
credentials that have led to his nomination to this very
important position. He graduated magna cum laude from both
Harvard College and Harvard Law School. Unfortunately, then he
was forced to go to school abroad and received a master's in
politics, philosophy, and economics from Oxford University,
where he served as a Rhodes Scholar.
Upon graduation from law school, he served as an Assistant
United States Attorney in the District of Columbia for three
years. Mr. Chairman, you will be pleased to note that in 1989
he spent a year as counsel to the Senate Labor and Human
Resources Committee. That singular experience of being a staff
member on the Hill, no doubt, has propelled his career to this
important position.
He served 6 years as an associate in the practice of law in
the District of Columbia, and has been with the Inspector
General's office as a special investigative counsel since 1995.
Mr. Chairman, I know that you recognize the unique importance
of that office, ensuring the credibility of the Department of
Justice, ensuring that it complies with its own rules and
regulations, and that all of us on a bipartisan basis know that
the Department of Justice is operating to the highest standards
that the American people would expect. Indeed, having the
office, an office which has been held in very high regard, I
think has allowed all of us to have a special degree of
confidence in the Department of Justice.
So I think this is a nomination in which the administration
can take considerable pride, and I am very pleased to be able
to present to you, Mr. Chairman, Mr. Glenn Fine for the
position of Inspector General.
Senator Smith. Thank you, Senator Torricelli.
Mr. Fine, do you have any family or friends that you wish
to introduce at this point?
TESTIMONY OF GLENN A. FINE, OF MARYLAND, TO BE INSPECTOR
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Fine. Yes, I do, Senator Smith. With me today are my
wife, Beth Heifetz, in the black; also, my daughter, Julia, who
is 4 years old; also my son, Michael, who is in the stroller,
who has fallen asleep. But we have promised to brief him about
the proceedings when he wakes up.
Senator Smith. I think he will enjoy them more than anybody
else.
At this point, if you have a statement, proceed.
Mr. Fine. Thank you, Senator Smith. And, Senator
Torricelli, thank you for those words of support. I am very
honored to appear before you today as the nominee to be the
Inspector General of the Department of Justice. I am grateful
to the President for nominating me, and I am also grateful to
the chairman and the other members of the committee for holding
this hearing to consider my nomination.
I would like to first, though, especially recognize three
people to whom I am particularly grateful. First is my wife,
Beth Heifetz, who has given me her unfailing love, support, and
faith. She is an extremely talented lawyer in her own right,
having previously worked as a partner in the Washington office
of the law firm of Jones, Day, Reavis, and Pogue. Currently,
she is on leave to stay at home, taking care of our two
wonderful children, and she is doing a terrific job in what is
the most important calling of all, raising a family.
I would also like to recognize my mother and my father for
all their support. Before he passed away, my father worked for
28 years in the Justice Department as a line attorney in the
Antitrust Division. I know he would be honored that his son was
being considered for this important position in the Department
of Justice.
I believe that working in the Justice Department provides a
lawyer one of the most significant and challenging
opportunities for public service that is available. The mission
of the Department of Justice is critical in the life of our
country. Whether attempting to ensure the safety of our
citizens, to enforce the immigration laws fairly and
effectively, to cleanse our communities of illegal drugs, to
effectively represent the United States in courts throughout
the country, or to pursue the many other important missions
entrusted to the Department of Justice, the work of the
Department has a profound effect on all Americans.
I have been fortunate to work in the Department as an
Assistant U.S. Attorney in the District of Columbia from 1986
to 1989, prosecuting more than 35 criminal caseson behalf of
the United States. I have also been fortunate to work for the last 5\1/
2\ years as a career official in the Office of the Inspector General.
For the last four years, I have been the Director of the
OIG's Special Investigations and Review Unit. Among other
duties, this unit has participated in many of the sensitive and
complex matters that the Inspector General's office has
investigated, including a review of the FBI's handling of the
Aldrich Ames case, a review of the FBI laboratory, a review of
the use of prison telephones by Federal inmates to commit
crimes, a review of claims that the Justice Department treated
certain cocaine traffickers more leniently because of their
alleged ties to the Nicaraguans contras or the CIA, and most
recently a review of the way the INS mishandled the case of the
serial railway killer Rafael Resendez-Ramirez.
I believe that it is essential for an aggressive, well-
funded, and independent Office of the Inspector General to help
provide effective oversight over many aspects of the
Department's work. As you know, the OIG's mission is to detect
and deter waste, fraud and abuse within the Department, and to
promote efficiency and effectiveness in the Department's
operations.
To this end, the OIG audits Department financial
statements, conducts reviews of Department programs, and
investigates criminal and administrative misconduct of certain
departmental personnel. In pursuit of these missions, I believe
the Inspector General must be hard-hitting but fair in his
reviews of Department programs and personnel. He must not be
afraid to deliver bad news or unpopular assessments about the
Department's operations or programs.
By the same token, he must exonerate persons or programs of
allegations of misconduct when that is warranted. The Inspector
General also has an essential responsibility to inform Congress
of problems or deficiencies in the Department operations or
programs that the Inspector General uncovers.
It has been my privilege to work in the Inspector General's
office these past 5\1/2\ years. I am committed, if I become the
Inspector General, to do everything I can to pursue the
extremely important duties of this position and to live up to
the high standards of the office. I hope I will have the
opportunity to work with this committee and with Congress in
pursuing effective oversight over the Department.
Thank you again for considering my nomination, and I would
be glad to respond to any questions you may have.
Senator Smith. Thank you, Mr. Fine. Let me just begin, and
feel free to jump in, Senator Torricelli; there is just the two
of us.
In the investigation of fraud, in uncovering fraud in the
office, would you make any recommended changes based on the
experience that you had and the long list of cases that you
talked about? Are there any recommended changes that you would
make in how we would do a better job or improve?
Mr. Fine. Well, a lot of the cases are individual to the
components that we have investigated. I think it is important
for us to be proactive in providing integrity briefings to
departmental officers and employees. I think it is important to
have a well-funded, aggressive Office of the Inspector General
to provide oversight over the many operations of the
Department.
The Department has changed in recent years. It has become a
grant making operation to some extent. In previous fiscal
years, there have been almost $4 billion in grants that the
Department gives out now. I think it is important for audits
and inspections of these programs to ensure that they are being
used for the proper purposes and to ensure that there is not
fraud in those programs.
As a measure that the Office of Inspector General has
taken, we have started a fraud detection office in our
Investigations Division, and we believe it is important to look
actively for fraud in the Department and I would be committed
to doing that were I to be the Inspector General.
Senator Smith. There was an initiative in 1996 that caused
some controversy, the so-called Citizenship USA initiative,
which naturalized a million or so immigrants before the
election in 1996. There was a Wall Street Journal report, the
June 9th edition I believe it was, that the report was about
due or was expected. Do you have any information on when that
report might be expected, and if you can comment on what may or
may not be the recommendation or the conclusion?
Mr. Fine. Senator Smith, our office is investigating that
matter. We have had a thorough investigation. We are in the
ending stages of completing that investigation. I must tell you
that I have removed myself, I have recused myself from any
involvement in that matter when I became a candidate for the
office of Inspector General because some of those allegations
do touch on actions of the White House. And I decided that I
did not want to have any potential conflict of interest being
considered for the position and at the same time conducting an
investigation. So I cannot and should not comment on the
investigation itself. I do know from the team that they are
working expeditiously and they hope to have a report done very
soon, hopefully within the next month.
Senator Smith. Thank you for that.
In another case, there was a Journal article, ``The Impact
of Right-to-Work Laws on Union Organizing,'' in 1987. You had
argued that there was an economic analysis that shows, ``The
number of workers in newly organized bargaining units is
substantially reduced in the first decade after passage of
right-to-work, particularly in the first five years. In the
later years, the effect is relatively small.'' That is pretty
much an obvious conclusion. Your point is, what, that right-to-
work has a negative impact on workers or on unions, or what is
it?
Mr. Fine. No, that wasn't the intention. In 1979, I had
done a senior honors thesis at Harvard College. I was an
economics student and I was intending to use regression
analysis, statistical analysis, to analyze the impact of the
passage of the law on the extent of union organizing. It was
not a piece to get into the benefits or the pros and cons of
right-to-work laws. It was simply an economic piece using the
statistical tools that I had been taught to see what the effect
was.
That conclusion that you describe was the analysis, the
academic analysis that we had reached, and the thesis received
honors and was turned into a journal piece for an economics
journal. But beyond the economic impact, I did not reach any
conclusions about the effect of right-to-work laws.
Senator Smith. I have no further questions. Each Senator
could possibly submit questions to you in writing, which, of
course, you would have to respond to in whatever the time
indicated. So except for that, that is pretty much all the
questions that you will face here this afternoon.
If you have any other comments that you would wish to make
that you would like to address, then feel free to do it now.
Mr. Fine. No. I would just like to thank you and thank the
committee for considering my qualifications, and I am honored
to be nominated for this position and I hope to have the
opportunity to work in this very important, critical job.
Senator Smith. I think the indication is from Senator
Hatch--obviously, he was not able to be here, but the reason to
have a substitute chairman, if you will, for the day is to try
to expedite things. So I think all of the nominees can draw
that conclusion that the chairman is interested in moving the
process along.
So we are glad you could be here, and thank you again for
your testimony. Thanks again to your family and it is nice to
have you here as well. It is an honor to have you here, and I
hope you found it an enjoyable experience. Your daughter is
very good, by the way, very quiet.
Mr. Fine. She has behaved great.
Thank you very much, Senator.
Senator Smith. Thank you, Mr. Fine. Nice to have you here.
[The questionnaire of Mr. Fine follows:]
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ASenator Smith. I see that Congressman McCollum has just
come in the room.
Bill, why don't you come up? I know you want to say
something on behalf of the other nominees. We will bring the
nominees up in just a second. But, Bill, I know you want to
speak on behalf of Judge Cavanaugh, I assume.
STATEMENT OF HON. BILL McCOLLUM, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Representative McCollum. Well, Senator Smith, I just wanted
to come over to the committee for several reasons. One,
obviously, I represent a good portion of the Middle District of
Florida, and I know we have got a number of good men up here
today to be discussed and to have an opportunity for you to
examine them to be judges in our district.
I am sure you know, and you are going to hear from them
individually, that we have a very big shortage of judges
especially in the Middle District. And despite the lateness of
this term, it is certainly my hope--and I think I express the
wishes of the entire delegation in Florida, certainly,
Republican and Democrat--that many, if not all of these judges
can somehow pass muster and get approved.
I know the ones who are here today, a couple of them
passingly, but I particularly know Greg Presnell. I know he is
coming up here in a minute. And in no way does my commenting
about him mean that I am not in favor of the others; I am.
But Greg and I have known each other for a long time. I
knew him in practice when I was practicing law. I knew him
because we were active in the local Orange County Bar
Association in Orlando. I knew him more than just by
reputation. So I don't come just as a Congressman in Orlando
who happens to have a constituent who has been nominated to be
a judge.
I think he is of the highest caliber, and I know
professionally that he is considered among his peers to be
extraordinarily capable, and I personally found him that way. I
think he would have an excellent judicial temperament. I
believe that he has the right attitude toward being a judge and
would look at issues in the kind of way that you and I would be
proud of.
So I didn't come to give great testimony, but I came to
endorse him, in particular, and to encourage you with all of
the judges to do what you can to help let us get some relief in
the most overworked district in the Nation. And I thank you for
that.
Senator Smith. Well, thank you very much, Congressman.
Thanks for coming over.
If we could have Judge Cavanaugh, Judge Moody, Attorney
Greg Presnell, and Judge John Steele come forward. I could have
sworn everybody in before, but I neglected to do that.
Do you swear that the testimony you shall give in this
hearing shall be the truth, the whole truth, and nothing but
the truth so help you God?
Judge Cavanaugh. I do.
Judge Moody. I do.
Mr. Presnell. I do.
Judge Steele. I do.
Senator Smith. We can start with you, Judge Cavanaugh. I
believe your families were introduced by Senator Graham, but if
you have any further introductions or comments that you would
like to make regarding your family before your statement, feel
free to do that, and then proceed with your statement.
TESTIMONY OF DENNIS M. CAVANAUGH, OF NEW JERSEY, TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY
Judge Cavanaugh. My family was introduced by Senator
Lautenberg. No, I have nothing further to say other than to
thank you, Mr. Chairman, and the committee for giving me the
opportunity to be here today.
Senator Smith. Do you have any opening statement?
Judge Cavanaugh. I do not.
Senator Smith. Judge Moody, the same.
TESTIMONY OF JAMES S. MOODY, JR., OF FLORIDA, TO BE U.S.
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Moody. Mr. Chairman, I am pleased to be here and I
appreciate the committee having this meeting and trying to move
this process along. Senator Graham did introduce my family, but
I did want to say my daughter, Ashley, apologizes for not being
here. She tried hard, but she is on a flight somewhere else and
couldn't be here. And my parents are elderly and couldn't make
it, but they are here in spirit.
And Senator Graham did not introduce my brother, Bill, who
is here in the audience.
Senator Smith. Welcome.
Judge Moody. And our mutual friend, J.J. Barker. They drove
all night from Columbia to be here and I appreciate that.
Senator Smith. It is great to have you here.
Do you have any comments that you would like to make as an
introduction?
Judge Moody. No, Mr. Chairman.
Senator Smith. Mr. Presnell.
TESTIMONY OF GREGORY A. PRESNELL, OF FLORIDA, TO BE U.S.
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Mr. Presnell. Thank you, Mr. Chairman. I would just like to
also thank the committee for scheduling this hearing on such
short notice, and also thank my family for being here today in
my support. And Senator Graham has introduced them, so I won't
take the time of the committee to do so further.
Thank you. I have no other comments.
Senator Smith. All right.
Judge Steele.
TESTIMONY OF JOHN E. STEELE, OF FLORIDA, TO BE U.S. DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Steele. Senator, thank you. As Senator Graham
indicated, my wife is unable to be here. She is out of the
country at the moment. I would like to recognize, however,
District Judge Harvey Schlesinger, from the Middle District of
Florida, the Jacksonville Division. He is a former magistrate
judge. I took his position when he became an Article III judge,
and he is here to check up on me, I believe.
Senator Smith. All right. Where is he hiding?
[Judge Schlesinger stood.]
Great to have you here.
Judge Steele. And I have no opening statement. Thank you.
Senator Smith. All right. Gee, you guys with no opening
statements, we could really move faster around here if we had
more witnesses like you.
I think you should, first of all, not infer anything by
having a low attendance. This happens very frequently because
of Senate business. And, frankly, you are better off. Usually,
if people are here, they are either mad about something or they
are going to praise you, one or the other, and the problem is
you never know which it is. So you should be glad, I guess,
that attendance is light.
Senator Torricelli, did you want to put anything on the
record before we go to questions?
Senator Torricelli. I do, Mr. Chairman. I have a statement
I would like to submit to the record and would like simply
share with you the observation that there is usually an inverse
proportion between the number of Senators at these hearings and
the universality of the support for the nominees. You are only
to be complimented.
I also wanted the committee to know that in my experience
in nominating people to the Federal district court and the
court of appeals, I have actually never had a nominee as
broadly supported by the bar association and by our colleagues
on the bench, as Dennis Cavanaugh.
Indeed, on a bipartisan basis, I have heard from the legal
community, and actually extraordinarily of current members of
the Federal judiciary who have worked with Dennis Cavanaugh
have called to give their unequivocal support for his
nomination. In my experience, this has never happened before
and is a great testament to his reputation as a Federal
magistrate, to the way he has fairly dealt with the law and to
the cause of justice in the past, and his to professional
reputation.
So I am extremely pleased that the President has nominated
Dennis Cavanaugh. I am very pleased that you have asked him
here today, Senator Smith, and I want to express my particular
gratitude to Senator Hatch for scheduling this proceeding so we
can proceed with Dennis Cavanaugh's nomination.
Questioning by Senator Smith
Senator Smith. Thank you, Senator.
Let me just start and just start with you, Judge Cavanaugh,
just to give you an opportunity to just give us two or three
examples of significant cases that you have handled that would
show qualifications for your position just so we can get some
of that on the record. You are very familiar with the position
you are nominated to fill.
Let me just be a little more specific for you, if that is
helpful. You were a public defender, and so in that role tell
me how that experience has affected your view of the rights of
the accused in the criminal proceedings.
Judge Cavanaugh. Well, certainly, I was a public defender
from 1973, I believe, until about 1977 in the State of New
Jersey, not the Federal system, in the Essex County region,
which was a very busy region in Newark, NJ. And it was an eye
opener in that I had never seen the types of things I was going
to see before, and I had the opportunity to represent people,
mostly indigents, on State criminal matters, everything ranging
from simple assaults to first-degree murder.
And I think it gave me a firsthand look at not only how the
system worked, but the social problems and the problems that
these people had that came before us, and I think has given me
a feeling of empathy for those that have to come before me
since, and I think it was just a wonderful experience.
Senator Smith. There are some pretty high-profile cases
such as the O.J. Simpson case, for example. But when you look
at the cases of those who are indigent--and they may get a good
public defender, they may not--and if they can't afford the so-
called high-priced attorney, then are they being cheated in the
system? Are we doing something wrong here? Does money get off
clients that shouldn't get off?
Judge Cavanaugh. Well, certainly that wasn't the situation
when I was representing them. But to a degree, I think you are
correct that those that can afford the high-priced attorneys or
the dream teams, if you will, certainly probably have a better
opportunity than those that are indigent.
I must admit that the assigned attorneys that I have seen--
I happen to be on the CJAA panel in New Jersey and I am
responsible, or partially responsible for assigning or getting
the list of attorneys that would be assigned in indigent
matters. I think they are excellent attorneys and they do what
they can within the system, but I think there still may be a
better group or better representation in the private sector.
Senator Smith. My uncle by the name of George Eldridge--I
don't know if you ever knew him or not--fromTrenton, New
Jersey, was very prominent as a probation officer in the court. That
was the days when Hughes was a judge before he became governor, so that
goes back a little while, probably before your time.
Judge Cavanaugh. Back in the 1960's. I remember Governor
Hughes, of course, but I wasn't an attorney then.
Senator Smith. Judge Moody, you have served as a judge.
From 1972 to 1995, you were an attorney, of course, for the law
firm of Trinkle, Redman, Moody, Swanson and Byrd. You tried a
lot of cases right through all the way to the verdict. Is there
any one that jumps out at you as a private litigator that you
feel gives you any special qualifications for what you are
about to embark on?
Judge Moody. I certainly don't claim any special
qualifications. I think any lawyer looking back at their career
can pick out two or three cases they thought were either most
enjoyable or most significant, one of which for me was a case
that I tried all the way to the Supreme Court dealing with the
taking of private property and how that would be dealt with
under the Constitution. That was the Grady Sweat case. That is
the only one that comes to mind right now.
Senator Smith. Mr. Presnell, same question. Anything that
jumps out at you, any special case, any case that----
Mr. Presnell. Mr. Chairman, those things that have happened
most recently, I guess, are perhaps highest or most on your
mind. I tried a case last summer in Jacksonville. It was a
three-week jury case against David Boyce, who is a famed
litigator, and it was a 3-week jury trial and we were able to
obtain an $18 million judgment in that case. and Mr. Boyce
claims not to lose many cases, but he lost that one, and it was
quite an experience for us because it was a very high-profile
case involving a $500 million power plant that would probably
have gone bankrupt had we not won the case. So the case itself
probably had a real value closer to $100 million, and there was
a great deal of pressure on the trial lawyers. And we were
fortunate to have obtained that verdict, and it is now on
appeal and I hope the appellate court affirms the judgment.
Senator Smith. And for you, Judge Steele, you handled these
felony prosecutions for the Organized Crime Task Force in
Detroit.
Judge Steele. It seems like a long time ago, but I did,
fresh out of law school. The case that I remember most is when
I served as one of four prosecutors in a police corruption case
that lasted almost seven months at trial. At the time, I
thought every case was supposed to last seven months. I didn't
know any better. And certainly as a young lawyer fresh out of
law school, I was given the opportunity to examine and cross-
examine witnesses and make a closing argument. That was pretty
heady stuff.
Senator Smith. Has that experience affected your view of
how we treat the accused, especially in the area of violent
crime?
Judge Steele. I think the totality of my experience, both
being a State prosecutor for a number of years and then
switching to the Federal system--and ultimately, before being
appointed as a magistrate, I was with a firm that primarily did
civil work, but I did some criminal defense work in Federal
work. And I think being on the other side certainly gave you a
different perspective than I had had as a career prosecutor up
to that time.
Senator Smith. Senator Torricelli, do you have any
questions?
Questioning by Senator Torricelli
Senator Torricelli. Thank you, Mr. Chairman.
We are approaching that part of the calendar when the House
of Representatives will be reapportioned. It often falls upon
the most junior members of the Federal district court in any
given State to redraw these lines. Few States will have the
kind of radical change and reapportionment that will be
experienced by Florida. Hopefully, New Jersey will have none.
The laws related to reapportionment are very much now in flux--
the requirements for minority representation, the exact
equality of each district in absolute numbers of citizens, the
compactness in communities of interest.
It is not at all unlikely that one of the three of you
could be given this charge. Given the fact that with the
exception of some cases related to minority representation, the
law is so unsettled from the Supreme Court, do you have any
thoughts about the competing factors to be considered in
redistricting and what should be the priority or the standards
as we approach reapportionment? Every Congressman in Florida
will be reading this transcript tomorrow with enormous interest
for any possible hint of your thinking about how a new Federal
standard should be written.
Mr. Presnell. Is that question to any one of us, in
particular? I usually defer to the judges.
Senator Torricelli. It is to any of the three.
Judge Steele. Senator, I have no prior experience in that
area, so if such a case does come to me, it will be totally
new. I would certainly look forward to reading the cases from
the Supreme Court that you have mentioned and doing the best I
could. There is certainly no possible way I could give any hint
of my feelings or my leanings because I have none.
Mr. Presnell. Senator, I would just add to that, obviously
when a judge is asked or required to enter the political arena,
that becomes one of the most difficult assignments, I think,
for an Article III judge. And one should tread very carefully
hand defer to the legislative andprerogative to the extent it
can, consistent with constitutional precedent.
Senator Torricelli. Often, of course, the political process
has broken down. I will just leave you with this thought to
consider. These decisions have not been the best of the Federal
judiciary in recent decades. It often has operated with a
numerical fiction.
I have been involved in redrawing the maps in my State, and
sometimes the Federal courts have chosen between a plan where
among our congressional districts one had a deviation of two
citizens and one had a deviation of five citizens. The census
is never more accurate than 8 to 10 percent, which is 50,000 to
60,000 people in a congressional district. It is usually 2
years old, which means it is another 15 percent off, which is
another 75,000 citizens. And yet you choose between two people
and five people per district for which is the most one-man,
one-vote.
There comes a need here to deal with reality, that there
are other considerations in redistricting--compactness,
continuity of representation. Nothing is more damaging to the
functioning in the House of Representatives than the fact that
a Member of Congress representing a particular neighborhood can
change repeatedly, when no one knows who represents them. It is
changed at a whim. It is a complex formula. It should be much
more than running 600,000 citizens' names through a computer
and seeing what comes out the other end, and I hope you are all
sensitive to it.
I wanted to raise one other issue, as well, one the
chairman commented upon. I think all of us in the country,
wherever we are on the issue of the death penalty, are
concerned about the indigent and the quality of representation.
I support the death penalty. I think it is appropriate. I
think it is the right of a State in extraordinary
circumstances. But I only support the death penalty because of
the strict standards applied by the Supreme Court of the United
States on how trials are to be conducted, the standards, the
second judgment of a jury.
I will confess, even as an advocate of the death penalty,
to being highly offended at the notion that this penalty would
be visited upon anyone without quality representation, where
the State is genuinely challenged by the defense bar.
Would any of you like to comment upon the controversy or
the national debate?
[No response.]
These are clearly very smart nominees, Mr. Chairman.
[Laughter.]
I keep trying to draw them into controversy and they will
not do so. Each of these men is obviously eminently qualified.
Senator Smith. Typical judges.
Senator Torricelli. No?
Mr. Presnell. Senator, I would just observe, in Florida, we
do have an office of capital representative that is separately
funded by the legislature to ensure that the appropriate
appeals are handled with respect to death penalty cases on a
statewide basis. And I think that is an important procedural
safeguard, at least in the State of Florida. I don't, of
course, know how it is handled in New Jersey.
Senator Torricelli. Well, Mr. Chairman, let me just
conclude then by saying that in the life of American citizens
who will appear before you, in no other times in their lives do
they feel complete equality--and they may be poor and they may
be powerless, but if in that one time they appear before you
and all the forces of the Government are arrayed against them,
but they feel that they had an equal opportunity to be heard,
to be defended, and have the law applied equitably, I hope it
is the one moment they appear before you. Ultimately, that is
the only thing we ask because that is at the heart of justice.
Congratulations to each of you.
Yes?
Judge Moody. Senator, if I could throw in that we in the
judiciary are aware that one of our problems in perception is
that the members of the public see us as giving other than
equal justice, that the poor don't have the same justice as the
rich. And we are trying to deal with that. It is not an easy
problem and we in the judiciary are slow to change, but I can
assure you we are trying and we are trying to meet that
perception.
Senator Torricelli. I am glad that you are. You know, it is
one of the things that troubles me where I think good and
honest men and women go to the judiciary and they lose sight of
the fact that they are in the government, but they are not of
the government.
It is notable, and even extraordinary, I think, that in the
birth of this Nation the Founding Fathers, though on this
vulnerable continent could have fallen to the prey of any world
power, their principal fear in the loss of American liberties
was not Britain, France, or Spain. Their principal fear was the
power of our own Government.
Sometimes I fear that those in the judiciary, because they
want our citizens to be safe from criminals--and you should--
and they want the laws enforced--and they must be--lose sight
of the fact that you are ultimately the only line of defense
against those who would take our liberties from within. If we
lose that, we lose everything, and we have no one to count upon
but you to protect against it. I trust, in all yourlives and
your careers, you will be mindful of it.
Mr. Chairman, I have no other questions. I have been so
unsuccessful with the ones I have asked.
Senator Smith. Thank you.
I am going to try one or two more issues and then we will
be ready to wrap it up. I am not going to get into any specific
areas, but just generically, it is very frustrating for us as
Senators in the advise and consent role in nominees that are
not Supreme Court nominees, where the area of precedent is more
of a legitimate question to ask.
We could say, well, if you are a Supreme Court nominee, how
do you feel about this decision or that where there is judicial
precedent. But you are not Supreme Court nominees, and all of
your predecessors that I have ever asked this question have
always said, well, I am not a Supreme Court nominee, therefore
I am not going to answer the question.
But is there any circumstance that you can think of where
you might be able to refuse to apply a Supreme Court precedent
in any decision other than as a member of the U.S. Supreme
Court?
Judge Cavanaugh. My answer would be no.
Senator Smith. And I ask this just out of ignorance because
I am not an attorney. Is there any opportunity for you to
express an opinion as to that precedent in your decision? For
example, could you say the answer is, no, I can't overturn the
precedent, I have to stick with the precedent, however this is
the way I feel about it?
Judge Cavanaugh. I think that would be inappropriate. I
think our job, if confirmed as district court judges, would be
to follow precedent, and to not follow precedent would be a
problem.
Senator Smith. You all agree with that?
Judge Steele. I do.
Senator Smith. And I understand that, and that is the
correct answer. But you can also see from our perspective,
traditionally and historically and usually, judges move from
whatever level you start at, the district, to the appellate,
eventually to the Supreme Court. So you are basically saying
that in our advice and consent role, we can't ask that question
until you are a Supreme Court nominee because, in other words,
it might influence my vote if I were to know how you felt about
this particular precedent.
Use Dred Scott, for example. After Justice Tawney's
decision, it was never challenged, but it wasn't right. And so
if no one ever challenged that, we would still say that blacks
can't sue in Federal court because they are property rather
than people, or three-fifths property, or whatever. So, that is
a precedent.
And you could also go to the Plessy case, as well, where we
say they are so outrageous in their determination and yet if
you are sitting there, you have no choice but to implement that
precedent. And the only opportunity I get is when you come up
before me as a Supreme Court nominee to ask you that question.
Now, if you were a Supreme Court nominee and I asked you--I
am not going to ask for your opinion on any of that, but if I
asked you as a nominee of the Supreme Court, would you be
willing to comment on a precedent at that time if you were a
nominee for a Supreme Court position? Would you be willing to
comment on what you felt about any particular precedent that
might be outstanding?
Judge Cavanaugh. Well, Mr. Chairman, I could see where that
could create a problem for the nominee, in that in so doing
they could be, in effect, giving an advisory opinion prior to
that problem coming before them. And as I am sure you well
know, the types of cases that you have mentioned, in
particular, are multi-faceted. There are all kinds of things
that could play a part in it, and I think that any nominee
would have to be very careful about responding to that because
there could be nuances that they just aren't aware of once the
case actually came before them. So I could see where it could
be difficult.
Senator Smith. On a particular case, but you can also see
it from our perspective. I mean, we have to answer questions
all the time in our campaigns of what we might do if we are
elected to the United States Senate. Would we vote this way or
would we vote that way?
So let's say you were a Supreme Court nominee sometime
after Plessy v. Ferguson. If I were to ask you, do you think
that separate but equal education is the proper precedent to
follow--it is the precedent of the Court. Is it proper? Then
you are saying that you couldn't answer that because that
question may come before you on the Court? Is that everybody's
position here?
So you could not even answer in a generic sense whether you
think separate but equal education is--so how do we know,
then----
Judge Cavanaugh. I could answer that question today
because, since Plessy v. Ferguson, there has been Brown v.
Board of Education which says that separate but equal is not
the law. So I would follow that precedent.
Senator Smith. But I am talking in between that, in between
Plessy and Brown. You are saying if you were a nominee in that
time period, you would not be able to answer my question if you
were a nominee. And I am not beating you up on it. My point is
it is awfully frustrating for us in the advice and consent
role.
How can we advise and consent if we don't even know whether
someone would be willing to vote one way or the other on a
precedent, or at least conceptually, not a casebut a precedent,
the issue of a precedent? I mean, how do we know?
Mr. Presnell. Mr. Chairman, I think the Supreme Court has
in several opinions set forth guidelines and a structure within
which they will reconsider prior opinions that might be
overruled. And I think you could certainly question the nominee
about the process and about the guidelines and framework within
which those decisions can be made. But I think as judicial
nominees, it is difficult, and I am flattered that we are being
asked questions as if we were here as a Supreme Court nominee.
Senator Smith. Well, I am not asking you the question
really specifically on the issue. I know that, but what I am
asking is just in a conceptual way. I mean, the point is what I
have said before publicly, and the reason why I bring it up
again is that it is frustrating for us as Senators to try to--
we get a ton of information on each of you, you know, from
personal information, which frankly I have no real interest in
knowing because I don't like to delve into people's personal
lives. But we get FBI backgrounds, we get all these things on
you.
Yet, when it comes down to really the reason why we want
you on the courts, we can't ask questions because it might be
some case coming before you. Well, that is the whole point.
There may be a case coming up on some of these issues and we
would like to know what your thoughts are, not what the
decision is. There is a difference between having an opinion on
something and translating that opinion into a decision on the
court.
I mean, I might have an opinion on something that is
unconstitutional, so what my opinion is is irrelevant. It is
whether or not it is constitutional or not. And what I find
unfortunate is something that is unconstitutional becomes
constitutional by precedent once it is established, whether it
is wrong or right. That is my concern, and there is no way to
undo that knowingly.
We literally, as the advise and consent folks, have to
hopefully get the precedent that we don't like overturned by
pure luck because we are never going to get an answer. And what
you have seen in many of the high-profile Supreme Court
nominations, whether it is Bork or Thomas, is don't answer the
questions. Bork learned that if you answer the questions, you
get punished for it. If you don't answer the questions--David
Souter--you get on the Court. So I mean that is the
frustration, and I don't think that is a good process.
So I understand you are not up for the Supreme Court, but
how do you feel about judicial activism? Is there a proper role
for judicial activism? Do you feel that judicial activism goes
up against the Constitution? I mean, isn't that the same issue
for all of you? If you have a particular view, do you feel that
you should put that view into a decision, in general, whether
it is constitutional or not?
Mr. Presnell. I do not, Mr. Chairman. I think----
Senator Smith. You could separate those two? You could
separate your personal view from the constitutional view? You
feel you could do that?
Mr. Presnell. Absolutely. As a judge, I would make every
effort to do that, and if I felt I could not, then, of course,
I could recuse myself.
Senator Smith. Right.
Mr. Presnell. But I see no reason why I would not and could
not.
Senator Smith. Does anybody disagree with that statement?
Judge Cavanaugh. No. I agree.
Senator Smith. Good. All right. Well, I don't have any
further questions. Does anybody have any further comments they
wish to make?
Judge Steele. No, sir.
Judge Cavanaugh. None, other than to again thank you on
behalf of the committee for having us here today. I certainly
appreciate it.
Senator Smith. All right. Well, I am sure SenatorHatch will
do everything he can to expedite the process. The record will be left
open until the close of business on Friday. There could be another
Senator or two that submits questions for the record, and you would
need to respond to those and then we would move forward from there.
Thank you all, and your families, for being here today. It
is a pleasure to have you.
[The questionnaires of Judge Cavanaugh, Judge Moody, Mr.
Presnell, and Judge Steele follow:]
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Senator Smith. The hearing is adjourned.
[Whereupon, at 3:14 p.m., the committee was adjourned.]
Questions and Answers
----------
Responses of Glenn A. Fine to Questions From Senator Thurmond
Question 1. Mr. Fine, if confirmed, what will be your top priority
as Inspector General?
Answer 1. The Inspector General must provide effective and
independent oversight over Department operations and personnel. My top
priority would be to ensure that our core work--investigations of
criminal and administrative misconduct and financial and program
reviews--is done in an aggressive, fair, and objective manner, and that
the office does all it can to detect and deter waste, fraud, and abuse.
Question 2. Mr. Fine, in your view, how important is it for the
position of the Inspector General to be independent of the chief of the
agency in which they operate?
Answer 2. According to the Inspector General Act, each Inspector
General ``shall report to and be under the general supervision of the
head of the establishment involved,'' but the head of the agency may
not prevent or prohibit the Inspector General from carrying out his or
her duties, except in limited circumstances.
I believe that it is essential for an Inspector General to perform
his or her duties independently from the head of the agency. Although
an effective Inspector General must have a professional relationship
with the head of the agency, independence is critical.
Question 3. Mr. Fine, I understand that the Inspector General's
office is currently preparing a report regarding Citizenship USA. How
long has the office been working on this report, and when do you expect
it to be completed?
Answer 3. The Citizenship USA investigation began in the spring of
1997. When I became a candidate for the Inspector General position in
1999, I recused myself from any involvement in the matter. I did not
want there to be any appearance of a conflict of interest, since I was
being considered for a Presidential appointment and the office's
investigation included examining allegations that could involve the
actions of White House officials.
I understand that the team is currently completing the report of
investigation and plans to issue the report within a month.
______
Responses of Dennis M. Cavanaugh to Questions From Senator Thurmond
Question 1. Mr. Cavanaugh, we frequently hear the argument that the
courts act in response to various social problems because the
legislature has failed to act on important issues. What is your view of
courts acting in this manner?
Answer 1. It is inappropriate for the courts to act in response to
social problems because the legislature has failed to act. It is the
duty of the trial court to resolve cases or controversies that come
before it rather than to solve the problems of society. Such broad
based changes in institutions, policies and mores are reserved for
Congress. The court's vital role in that process is to make certain
that the policies and rules so established are effectuated by being
applied consistently, equitably, promptly and justly to each case and
each litigant that enters the federal judicial system.
Question 2. Mr. Cavanaugh, do you have any personal objections to
the death penalty that would cause you to be reluctant to impose or
uphold a death sentence?
Answer 2. No. I would have no personal objections or problems in
imposing or upholding a death sentence. I would be bound by the
precedent of the Supreme Court which has held that the death penalty is
constitutional.
Question 3. Mr. Cavanaugh, what is your view of mandatory minimum
criminal sentences, and would you have any reluctance to impose or
uphold them as a Federal judge?
Answer 3. It is my view that mandatory minimum criminal sentences
as set forth in the Sentencing Guidelines have been held to be
constitutional by the Supreme Court. I would have no reluctance to
impose or uphold mandatory minimum sentences as set forth in the
Guidelines.
Question 4. Mr. Cavanaugh, as you are well aware, the sentencing of
criminal defendants in Federal court is conducted under the Federal
Sentencing Guidelines. Some argue that the Guidelines do not provide
enough flexibility for the sentencing judge, while others say the
Guidelines provided needed consistency. What is your view of the
Federal Sentencing Guidelines and their application?
Answer 4. The Sentencing Guidelines have been held to be
constitutional by the Supreme Court of the United States. I have had no
objection to applying them in the past as a United States Magistrate
Judge and I would have no objection to applying them as a District
Court Judge.
Question 5. Mr. Cavanaugh, as you know, the Prison Litigation
Reform Act, was an attempt to limit prisoner litigation and court
involvement in prison operations. Do you believe that the Act has been
beneficial to the legal system or do you believe it places too many
restrictions on the ability of prisoners to make claims and for judges
to remedy Constitutional violations in the prison context?
Answer 5. The purpose of the Prison Litigation Reform act is to
reduce the backlog of frivolous prisoner cases in the federal courts
and yet not restrict the ability of prisoners to make appropriate
federal claims. Since this is an act of Congress, it is presumed to be
constitutional. As such, I am bound by the Act.
Question 6. Mr. Cavanaugh, as you are aware, Federal Rule of Civil
Procedure 11 permits federal judges to impose sanctions against
attorneys for unwarranted claims or representations made in their
pleadings. Some say this rule is an important tool for judges, while
others believe it discourages litigants from testing the boundaries of
existing law. What is your opinion of Rule 11?
Answer 6. I believe that Rule 11 is an effective and appropriate
rule when used in the appropriate context. While I am of the opinion
that sanctions against attorneys should be imposed sparingly and as a
last resort, there is no question but that this rule is an important
tool that protects litigants from unwarranted and/or frivolous claims.
Under the appropriate circumstances, I would have no hesitancy in
imposing sanctions pursuant to Rule 11.
______
Responses of Dennis M. Cavanaugh to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect, even if you personally disagree with such precedents?
Answer 1. Yes. I am committed to following the precedents of higher
courts and giving them full force and effect. Under our law, a United
States District Court Judge must apply applicable Court of Appeals and
Supreme Court precedent even if he or she disagrees with that
precedent.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores\1\ where the Court struck down the Religious
Freedom Restoration Act.
---------------------------------------------------------------------------
\1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
Answer 2. Regardless of whether or not I thought the Supreme Court
or Court of Appeals had seriously erred, I would still follow and apply
that decision. There are no circumstances, and should be no
circumstances, under which a lower court may impose its independent
judgment on the merits of a case in contradiction of a Court of Appeals
or Supreme Court precedent.
Question 3. Regardless of your personal feelings on these issues,
are you committed to following precedent of higher courts on equal
protection issues?
Answer 3. Yes. I am committed to following the precedents of higher
courts on equal protection issues as well as all other issues.
Question 4. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 4. No. Our Supreme Court has held the death penalty to be
constitutional. I have no legal or moral belief that would inhibit or
prevent me from imposing or upholding a death sentence in the
appropriate case.
Question 5. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 5. There is little question but that a delay of 10 to 20
years between conviction of a capital offender and execution is
unreasonably long. I believe that once Congress or a state legislature
has made the decision that capital punishment or any other punishment
for non-capital cases is appropriate, the federal courts should make
every effort to resolve the matters as fairly and expeditiously as
possible.
Question 6. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of each of these authorities is
consistent with the exercise of the Article III judicial power.
Answer 6. In determining the legal effect of a statute or
constitutional provision, the judicial power of an Article III judge is
limited. A judge must presume a statute is constitutional. A court
should carefully review the plain text of the statute or constitutional
provision and give the words a plain and ordinary meaning so as not to
construe the language in such a way as to unreasonably limit or expand
their meaning. If after such a review, the provision is ambiguous, a
court should look to other sources such as the structure of the overall
text, the intent of the drafters as reflected in contemporaneous
writings, and applicable analogous authorities. It must be understood
that the use of sources such as legislative history may not always be
accurate in that the views expressed by one legislator during a debate
may not set forth the collective intent of the legislative body.
Therefore, the review of the legislative history should be done with
caution.
Question 7. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and the
original intent of the Framers of the Constitution; (2) discernment of
the ``community's interpretation'' of constitutional text, see William
J. Brennan, ``The Constitution of the United States: Contemporary
Ratification,'' Test and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 7. It is only the Supreme Court that could properly uphold
the claim of a right not previously recognized by the Supreme Court.
Such a recognition would only be done in extremely rare circumstances.
Interpretation of the plain meaning of the text and original intent of
the Framers of the Constitution would be a legitimate means to such an
interpretation.
I do not believe that the discernment of the ``community's
interpretation'' is a legitimate approach to establishing
constitutional rights not previously upheld by a court.
Ratification of an amendment under Article V of the Constitution
requires ratification of three-quarters of the States or by convention
in three-quarters thereof. Such an amendment duly ratified, would
become a part of the Constitution, and therefore a legitimate
constitutional right.
Question 8. How would you, if confirmed, analyze a challenge to the
constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 8. The doctrine of stare decisis dictates that due deference
must be given to binding precedent of cases decided by higher courts.
Accordingly, in a case that was not one of first impression, that
doctrine must be followed.
In analyzing a case of first impression, a court must presume that
a statute is valid and constitutional. I would also consider the words
of the statute in order to determine its meaning. If after such a
reading I were convinced that the case was one of first impression, I
would review precedents of higher courts in analogous situations for
guidance. Only upon a clear showing that the statute is contrary to the
Constitution or where Supreme Court precedent demands, should such a
constitutional challenge succeed.
Question 9. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of these sources of law impact the
scope of the judicial power and the federal government's power under
Article III?
A. Griswold v. Connecticut, 381 U.S. 479 (1965).
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 9. In Griswold, the Supreme Court declared a state statute
prohibiting the use or the aiding and abetting of the use of
contraceptives to be unconstitutional. The Court found that implicit
rights exist within the ``penumbra'' of those rights specified in the
Constitution.
The Alden case involved a claim by state employees that their
employer, the State of Maine, violated their rights under the Fair
Labor Standards Act with respect to overtime pay. The Maine Supreme
Judicial Court held that the state enjoyed sovereign immunity and could
therefore not be sued in state court without the state's consent. The
Supreme Court of the United States affirmed the Maine Supreme Judicial
Court's decision and held further that article I of the Constitution
does not give Congress the power or authority to subject states to
private damage suits in the state courts.
These two cases are noteworthy due to the different type of
protection each affords. Griswold deals with the rights of individual
citizens who are protected from federal government regulation. Alden
holds that federal authority does not extend to diminish the
sovereignty of state governments. In both cases the Court demonstrates
its willingness to look beyond the text of the Constitution to support
its findings.
Question 10. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress's
power and on the federal government's power compared with the power of
state governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
B. United States v. Lopez 514 U.S. 549 (1995).
Answer 10. In Wickard, the Court upheld legislation regulating the
amount of wheat produced for personal consumption on family farms. This
decision recognized Congressional power under the commerce Clause to
regulate intrastate activities that have a substantial and cumulative
economic effect on interstate commerce, whether or not the activity
itself may be commerce. The Supreme Court held that congressional
powers are not just limited to those expressly stated in the text of
the Constitution, but also may include implied powers as are necessary
and proper to allow Congress to effectuate the express powers.
In Lopez, the Court found a federal statute prohibiting persons
from possessing a firearm near a school was unconstitutional since the
act exceeded Congress's Commerce Clause authority in that possession of
a gun in a local school zone was not economic activity that
substantially affected interstate commerce. Under our federal system,
the states possess primary authority for defining and enforcing
criminal law. The act in question was a criminal statute that by its
terms had nothing to do with ``commerce'' or any economic enterprise,
however broadly defined. In effect, the Court held that there are
limits to congressional power under the Commerce Clause. While Wickard
set expansive outer limits, Lopez defined and restricted those limits.
Question 11. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact ofthe following
cases on the division of power between the national and state
governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
B. Printz v. United States, 521 U.S. 898 (1997).
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
E. Baker v. Carr, 369 U.S. 186 (1962).
F. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 11. The division of power between the federal and state
governments represents an important concept in our system of
federalism. In Lopez a federal statute prohibiting persons from
possessing a firearm near any school was struck down due to the fact
that the law did not fall within the federal commerce power. The
Supreme Court rejected the Government's argument that the statute in
question substantially affected interstate commerce and therefore fell
within the scope of the commerce clause. The Court determined that such
a finding would convert the federal commerce power into a general
police power of the kind retained only by the states.
In Printz, the Supreme Court struck down a provision of the Brady
Act requiring state officials to conduct background checks on
individuals purchasing firearms. The Court found the provision in
question to be invalid due to the fact that it effectively transferred
the executive's responsibility to administer laws enacted by Congress
to state officials. The Court found that Congress could not require
states to conduct background investigations in furtherance of federal
programs.
The Alden case involved an action by state employees who claimed
their rights were violated pursuant to the Fair Labor Standards Act due
to the fact that they were not paid overtime. After the Maine Supreme
Judicial Court held that the state had sovereign immunity and could not
be sued in state court without its consent, the Supreme Court of the
United States affirmed the holding that Article 1 of the Constitution
does not give Congress the power to subject states to private damage
lawsuits in state courts.
In Baker v. Carr, the Supreme Court decided there was federal court
jurisdiction over a state's redistricting plan which had previously
been considered purely a question of a state's political function.
Because of the importance of the equal protection issues involved, the
Court was willing to encroach upon a function reserved to the state
legislature.
In Shaw v. Reno, the Supreme Court again took jurisdiction over a
state's redistricting plan. This time the Court defined specifically
the degree of constitutional scrutiny required to review a plan based
on race, finding that it would be subject to a strict scrutiny
analysis.
The Constitution provides for the division of powers between the
various states and the federal government. Basically, the states retain
governmental power and authority for those matters not enumerated as
federal powers under the Constitution. This division of power is
designed to protect the liberties of the individuals because the two
governments check and balance each other.
The cases cited above set forth a framework to finding the
appropriate role of the federal and state governments as interpreted by
the Supreme Court. Lower court judges are obligated to follow these
precedents in applicable cases.
Question 12. Do you believe that a federal district court has the
institutional expertise to set rules for and oversee the administration
of prisons, schools, or state agencies?
Answer 12. No. Under the Constitution, the role of the judiciary is
to decide cases or controversies that come before it, not to encroach
upon the constitutional powers conferred upon other branches of the
government. Courts do not have the institutional expertise to set rules
for and oversee the administration of prisons, schools or state
agencies.
Question 13. In some cases, statutes were in effect before the
ratification of a clause of the Constitution that is later used to
challenge the validity of those statutes. In ruling on the
constitutionality of a statute, what weight should a court give to the
fact that the challenged statute existed and was routinely enforced
before and after the ratification of the constitutional provision at
issue? Assume the court faces this issue as a matter of first
impression.
Answer 13. The Constitution is the supreme law of the land. In a
case of first impression, which is quite rare, a court must presume a
statute is constitutional. The fact that a challenged statute existed
previously and was routinely enforced, should be given significant
weight. I would also consider the words of the statute in order to
determine its meaning. If upon review I was satisfied that the case was
indeed one of first impression, I would consider precedents of higher
courts in analogous areas of law. Only upon a clear showing that the
statute in question is contrary to the Constitution, or where Supreme
Court precedent demands, should such a challenge to a statute's
constitutionality succeed.
______
Responses of James S. Moody, Jr. to Questions From Senator Thurmond
Question 1. We frequently hear the argument that the courts act in
response to various social problems because the legislature has failed
to act on important issues. What is your view of courts acting in this
manner?
Answer 1. Under our Constitution's separation of powers, the role
of the District Court is to apply statutes and precedent from decisions
of higher courts to the cases and controversies before it. The role of
the Federal courts is not to act in response to various social problems
because the legislature has failed to act or chosen not to act on a
particular issue.
Question 2. Do you have any personal objections to the death
penalty that would cause you to be reluctant to impose or uphold a
death sentence?
Answer 2. No, I hold no personal objection to the death penalty
which would cause me to be unable or reluctant to impose or uphold a
death sentence.
Question 3. What is your view of mandatory minimum criminal
sentences, and would you have any reluctance to impose or uphold them
as a Federal judge?
Answer 3. Criminal sentences are within the purview of the
legislative branch. If the legislative branch sets a minimum sentence
for a particular offense or set of circumstances, I would have no
reluctance to impose or uphold it as a Federal judge.
Question 4. The sentencing of criminal defendants in Federal court
is conducted under the Federal Sentencing Guidelines. Some argue that
the Guidelines do not provide enough flexibility for the sentencing
judge, while others say the Guidelines provided needed consistency.
What is your view of the Federal Sentencing Guidelines and their
application?
Answer 4. The establishment of sentencing guidelines is within the
purview of the legislative branch. Inconsistent sentencing gives the
appearance of unequal treatment. The legislative branch adopted
sentencing guidelines to ameliorate that problem and made provisions
for flexibility under certain limited circumstances. I anticipate that
I will find the guidelines helpful by providing an easy framework
within which to determine appropriate sentences.
Question 5. The Prison Litigation Reform Act was an attempt to
limit prisoner litigation and court involvement in prison operations.
Do you believe that the Act has been beneficial to the legal system or
do you believe it places too many restrictions on the ability of
prisoners to make claims and for judges to remedy Constitutional
violations in the prison context?
Answer 5. Prisoner litigation has threatened to overwhelm the court
system. Obviously, there must be a balancing of the need to address any
legitimate grievances brought by prisoners with protecting the court
from frivolous lawsuits which tax the limited resources of the court.
While as a state court judge I haven't had the occasion to apply the
Prison Litigation Reform Act, if confirmed I would have no hesitancy in
doing so.
Question 6. Federal Rule of Civil Procedure 11 permits Federal
judges to impose sanctions against attorneys for unwarranted claims or
representations made in their pleadings. Some say this rule is an
important tool for judges, while others believe it discourages
litigants from testing the boundaries of existing law. What is your
opinion of Rule 11?
Answer 6. Federal Rule of Civil Procedure 11 is an important tool
available to the court to discourage and sanction frivolous claims
while permitting litigants to test the boundaries of existing law.
____
Responses of James S. Moody, Jr., to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
Federal courts and Circuit Court precedents are binding on the District
Courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect, even if you personally disagree with such precedents?
Answer 1. Yes, I am committed to following the precedents of higher
courts faithfully and giving them full force and effect, even if I
personally disagree with such precedents. A judge's personal views are
irrelevant to his or her rulings as a Federal District Court judge.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores \1\, where the Court struck down the Religious
Freedom Restoration Act.
---------------------------------------------------------------------------
\1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
Answer 2. As a Federal District judge, I will apply the precedents
of the Circuit Court of Appeal and the Supreme Court even if I think
the decision is seriously in error.
Question 3. Regardless of your personal feelings on these issues,
are you committed to following the precedent of higher courts on equal
protection issues?
Answer 3. Yes. I am committed to following the precedent of higher
courts on all issues, including equal protection issues.
Question 4. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a Federal judge?
Answer 4. I do not have any legal or moral beliefs which would
inhibit or prevent me from imposing or upholding a death sentence in
any criminal case that might come before me as Federal judge.
Question 5. Do you believe that 10-, 15-, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the Federal
courts should focus their responses on resolving capital cases fairly
and expeditiously?
Answer 5. Yes, 10, 15, or 20 years is too long between conviction
of a capital offender and execution of the sentence. Once Congress or a
state legislature has made the policy decision that capital punishment
it appropriate, Federal courts should focus their resources on
resolving capital cases fairly and expeditiously.
Question 6. What authorities may a Federal judge legitimately use
in detemrining the legal effect of a statute or constitutional
provision? Discuss how the use of each of these authorities is
consistent with the exercise of the Article III judicial power.
Answer 6. Authorities for a Federal District Court judge are the
express provisions of the Constitution and statutes, and decisions from
higher courts. If there is no precedent directly on point, a judge may
look at analogous cases and attempt to apply similar reasoning to the
case at hand. If a provision is ambiguous and the legislative history
is clear, another appropriate authority is the legislative history of
the statute or constitutional provision. Applying precedent in this
manner limits the exercise of judicial power and provides stability and
predictability.
Question 7. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and the
original intent of the Framers of the Constitution; (2) discernment of
the ``community's interpretation'' of constitutional text, see William
J. Brennan, The Constitution of the United States: Contemporary
Ratification, Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 7. Constitutional rights are enumerated in the Constitution.
The interpretation of constitutional rights based on the plain wording
and the original intent of the framers of the Constitution is a
legitimate approach to considering the claims of rights not previously
upheld by a court. A constitutional right may be legitimately
established by a ratification of an amendment under Article V of the
Constitution. If that occurs, it should be enforced and protected like
the other amendments.
It is not the role of the Federal Court to attempt to discern the
``community's interpretation'' in order to establish a constitutional
right not previously upheld by a court. The legislative and executive
branches are accountable to the public and are in the best position to
ascertain the views of the community.
Question 8. How would you, if confirmed, analyze a challenge to the
constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 8. All statutes are presumed constitutional. If a challenge
to the constitutionality of a statute arose and it was not a case of
first impression. I would follow the binding precedents of the higher
courts. In a case that was truly of first impression, I would look to
the express language of the statute and the Constitution, and to
analogous or otherwise relevant cases and precedent of the Supreme
Court and the Eleventh Circuit Court of Appeals.
Question 9. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of these sources of law impact the
scope of the judicial power and the Federal government's power under
Article III?
A. Griswold v. Connecticut, 381 U.S. 479(1965).
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 9. In Griswold v. Connecticut, the Supreme Court found a
right of privacy in the penumbra of various Amendments to the
Constitution, primarily the First Amendment. The right of privacy is
not an expressly enumerated right within the Constitution. The Supreme
Court reasoned that it was implied by the other Amendments. In
contrast, in Alden v. Maine the Supreme Court looked to the original
intent of the framers of the Constitution in determining an issue not
specifically expressed in the Constitution, the sovereign immunity of
the States. The Supreme Court noted that historically, the founding
generation considered immunity from private suits central to the
division of power and the dignity of the individual states.
The sources of law for a Federal District Court judge are the
provisions of the United States Constitution, the statutes passed by
Congress and the precedents of the higher courts. The method of
interpretation is to apply the clear wording of the text of the statute
or constitutional provision consistent with the decisions of the higher
courts as applied to the facts of the case. Stare decisis is a
fundamental principle of our system to justice. Using these sources of
law in this manner of interpretation restricts the scope of judicial
power, but provides stability, consistency and predictability. When in
doubt about the meaning of a statute or constitutional provision, one
should look to analogous reasoning by higher courts on similar issues
and the intent of the original framers of the Constitution.
Question 10. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress's
power and on the Federal government's power compared with the power of
state governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
B. United States v. Lopez, 514 U.S. 549 (1995).
Answer 10. In Wickard v. Filburn, the Supreme Court upheld
legislation passed pursuant to the Commerce Clause which restricted the
production of home grown wheat. The Supreme Court held that, even
though Wickard's activity might be local and trivial by itself, his
activity could still be reached by regulation of the Federal government
because his contribution, taken together with that of many others
similarly situated, affected interstate commerce. This arguably
extended the reach of Federal regulations to even ``local'' intrastate
activities.
In United States v. Lopez, the Supreme Court held that the
possession of a gun by a student in a local school zone was not an
economic activity that might, through repetition elsewhere, have a
substantial effect on interstate commerce. This decision acknowledged
the intent of the original framers of the Constitution that purely
local matters should be left to the regulation of the individual
states.
These two cases are illustrative of the Supreme Court's exercise of
judicial power in cases highlighting the tension between the enumerated
powers of the Federal government with those reserved to the individual
states. The Constitution created a Federal government of enumerated
powers. The idea of the original framers was that the powers not given
specifically to the Federal government would remain with the individual
state governments.
Question 11. What role does the division of power between the
national government and state governments play in our Federal system?
What impact does this division have on the liberty of the individual
and the power of Federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
B. Printz v. United States, 521 U.S. 898 (1997).
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
D. Baker v. Carr, 369 U.S. 186 (1962).
E. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 11. The drafters of the Constitution envisioned a balance of
power between the national government and the individual states, much
like the system of checks and balances among the three branches of
government. As United States v. Lopez reiterates, this constitutionally
mandated division of authority ``was adopted by the Framers to ensure
protection of our fundamental liberties.'' The five cases mentioned in
this question are all examples of the division of power between the
national government and state governments under our Federal system.
In United States v. Lopez, the Supreme Court, after acknowledging
this division of power, held that the possession of a gun in a local
school zone by a student was a local matter with no substantial
economic effect sufficient to bring the matter within the reach of
Federal regulation through the Commerce Clause. Likewise, in Printz v.
United States, the Court looked to historical understanding and
practice, and to the structure of the Constitution itself, in holding
that the Federal government could not compel state officers to execute
Federal laws requiring background checks prior to the purchase of a
gun.
Again in Alden v. Maine, the Supreme Court was called upon to
review the division of power between the national government and the
state governments. It held that under the Federal system established by
the Constitution, the states retained a ``residuary and inviolable
sovereignty,'' quoting from the Federalist No. 39. The sovereign
immunity of the states is not specifically mentioned in the
Constitution, but the Supreme Court looked to constitutional history
and noted that the founding generation considered immunity from private
suits central to the Federal division of powers. TheSupreme Court found
that the doctrine that a sovereign could not be sued without its
consent was universal in the States where the Constitution was drafted
and ratified.
Baker v. Carr and Shaw v. Reno examine this same division of power
as applied through the Equal Protection Clause of the Fourteenth
Amendment to state voting rights cases. In Baker v. Carr, the Supreme
Court held that it had jurisdiction to hear a voting apportionment case
involving a claim that plaintiffs were deprived of equal protection in
voting in state elections. It determined that it was not a non-
justiciable political question even though it involved matters
traditionally left to legislative policy-making involving a state's
apportionment of voting power among its numerous localities. In Shaw v.
Reno, the Supreme Court once again entertained a claim of an equal
protection violation by a state's apportionment. The Supreme Court
looked to the history of racial discrimination in voting and its link
to the Fourteenth Amendment as important in deciding that it was a
federal question. It pointed out that the Equal Protection Clause
prevents the States from discriminating against individuals on the
basis of race and it applied the strict scrutiny test to the
apportionment plan.
Question 12. Do you believe that a Federal District Court has the
institutional expertise to set rules for and oversees the
administration of prisons, schools, or state agencies?
Answer 12. No, the Federal District Court does not have the
institutional expertise to set rules for and oversee the administration
of prisons, schools, or state agencies.
Question 13. In some cases, statutes were in effect before the
ratification of a clause of the Constitution that is later used to
challenge the validity of those statutes. In ruling on the
constitutionality of a statute, what weight should a court give to the
fact that the challenged statute existed and was routinely enforced
before and after the ratification of the constitutional provision at
issue? Assume the court faces this issue as a matter of first
impression.
Answer 13. A statute in effect before the ratification of a clause
of the Constitution that is later used to challenge the validity of
that statute is entitled to a strong presumption of validity. In a case
not of first impression, binding precedent of the higher courts would
control. In a case of first impressions, the analysis should begin with
the strong presumption of constitutionality. I would then look to
analogous reasoning from decisions of higher courts on similar issues
with a view toward reaching a consistent result.
__________
Responses of Gregory A. Presnell to Questions From Senator Thurmond
Question 1. Mr. Presnell, we frequently hear the argument that the
courts act in response to various social problems because the
legislation has failed to act on important issues. What is your view of
courts acting in this manner?
Answer 1. Courts should not attempt to fill policy voids through
judicial action. The correction of perceived social problems is the
prerogative of the legislature, and the failure of the legislature to
act does not warrant judicial intervention.
Question 2. Mr. Presnell, do you have any personal objections to
the death penalty that would cause you to be reluctant to impose or
uphold a death sentence?
Answer 2. No, I have no personal objections to the death penalty
that would cause me to be reluctant to impose or uphold a death
sentence.
Question 3. Mr. Presnell, what is your view of mandatory minimum
criminal sentences, and would you have any reluctance to impose or
uphold them as a Federal judge?
Answer 3. Congress has the right to legislate mandatory minimum
criminal sentences and I would, if confirmed as a Federal judge, have
no reluctance to uphold them.
Question 4. Mr. Presnell, as you are well aware, the sentencing of
criminal defendants in Federal court is conducted under the Federal
Sentencing Guidelines. Some argue that the Guidelines do not provide
enough flexibility for the sentencing judge, while other say the
Guidelines provide needed consistency. What is your view of the Federal
Sentencing Guidelines and their application?
Answer 4. In adopting the Federal Sentencing Guidelines, Congress
sought to balance the competing goals of flexibility and consistency.
Federal judges are bound to follow the law, and if confirmed, I would
do so in connection with application of the Federal Sentencing
Guidelines.
Question 5. Mr. Presnell, as you know, the Prison Litigation Reform
Act, which was an attempt to limit prisoner litigation and court
involvement in prison operations. Do you believe that the Act has been
beneficial to the legal system or do you believe it places too many
restrictions on the ability of prisoners to make claims and for judges
to remedy Constitutional violations in the prison context?
Answer 5. As a civil lawyer, I have no personal knowledge as to the
actual effect which the Prison Litigation Reform Act has had. However,
if confirmed as a Federal judge, I am committed to follow the
provisions of this Act and would do so.
Question 6. Mr. Presnell, as you are aware, Federal Rule of Civil
Procedure 11 permits Federal judges to impose sanctions against
attorneys for unwarranted claims or representations made in their
pleadings. Some say this rule is an important tool for judges, while
others believe it discourages litigants from testing the boundaries of
existing law. What is you opinion of Rule 11?
Answer 6. Rule 11 is a useful tool and should be preserved. In my
experience the Rule has had a beneficial effect by reducing the number
of frivolous claims. It has not been my experience that the Rule in
general has been abused, nor has it improperly discouraged litigants
from testing the boundaries of existing law.
______
Responses of Gregory A. Presnell to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect, even if you personally disagree with such precedents?
Answer 1. Yes, as a District Court judge, I am committed to
following binding precedent of the Supreme Court of the United States
and the Eleventh Circuit Court of Appeals (and the Fifth Circuit prior
to 1981), regardless of any personal views I might have about those
decisions.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own beat judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores where the Court struck down the Religious
Freedom Restoration Act.
Answer 2. I would follow applicable precedent of the Supreme Court
and Court of Appeals even if I believed those decisions to be flawed.
If confirmed as a District Court judge, I would be bound to follow
Supreme Court precedent including City of Boerne v. Flores, 521 U.S.
507 (1997).
Question 3. Regardless of your personal feelings on these issues,
are you committed to following precedent of higher courts on equal
protection issues?
Answer 3. Yes, I am committed to following precedent of higher
courts on equal protection issues, regardless of any personal feelings
I might have on these issues.
Question 4. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 4. No, I do not have any legal or moral beliefs which would
inhibit or prevent me from imposing or upholding a death sentence in
any criminal case that might come before me as a Federal judge.
Question 5. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 5. Yes, I believe that extensive delays between conviction
and execution are inappropriate. Review of capital cases should be
expeditiously completed, consistent with due process.
Question 6. What authorities may a federal judge legitimately use
in determining the legal effect of a statue or constitutional
provision? Discuss how the use of each of these authorities is
consistent with the exercise of the Article III judicial power.
Answer 6. The jurisdiction of an Article III judge is limited to
actual cases or controversies over which the judge has personal and
subject matter jurisdiction. In exercising that jurisdiction, a federal
judge should look first to the language of the statute or
constitutional provision at issue. With a presumption of
constitutionality, the court may then look at binding and persuasive
precedent, consistent with the doctrine of stare decisis. In rare
circumstances, where the provision is ambiguous and there is no helpful
precedent, the court may look to legislative history in an effort to
discern legislative intent.
Question 7. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and the
original intent of the Framers of the Constitution; (2) discernment of
the ``community's interpretation'' of constitutional text, see William
J. Brennan, The Constitution of the United States: Contemporary
Ratification, Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 7. Interpretation of the plain meaning of the text and the
original intent of the Framers of the Constitution is certainly a
legitimate approach to establishing a new constitutional right. I would
question the legitimacy of any attempt to create a new constitutional
right through discernment of a so-called ``community interpretation.''
Ratification of an amendment under Act V of the Constitution is a
fundamental approach to establishing a new constitutional right and
would be legitimate because the Constitution itself provides the
authority for such change.
Question 8. How would you, if confirmed, analyze a challenge to the
constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 8. In analyzing a challenge to the constitutionality of a
statute, I would look first at the plain language of the statute and
Constitution, and presume the statute to be constitutional. If not a
case of first impression, I would look to binding precedent--decisions
of the Supreme Court of the United States and the Eleventh Circuit
Court of Appeals. If necessary, I would also look at persuasive
authority from other appellate courts. In a case of first impression, I
would look for analogous authority and seek to apply the rules
articulated in these cases.
Question 9. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of these sources of law impact the
scope of the judicial power and the federal government's power under
Article III?
A. Griswold v. Connecticut, 381 U.S. 479 (1965).
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 9. In Griswold v. Connecticut, 381 U.S. 479 (1965), the
Supreme Court held that substantive due process under the Fourteenth
Amendment protected the right of married couples to obtain
contraceptives, thereby invalidating a Connecticut law restricting
access to birth control. The source of this decision is grounded in the
language of the Amendment: ``[N]or shall any state deprive any person
of life, liberty, or property without due process of law.'' The
Griswold opinion was the culmination of a line of Supreme Court cases
recognizing a substantive element to the Fourteenth Amendment, as
opposed to procedural due process. Article III courts should be
cautious when using substantive due process as a basis to invalidate a
state statute. Nevertheless, as a district judge, I would apply this
precedent, if necessary, to fulfill my responsibility to uphold the
Constitution of the United States as construed by the Supreme Court.
In Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme Court
dismissed a lawsuit brought by state employees in state court under the
Federal Fair Labor Standard Act. As a basis for its decision, the court
relied on the Eleventh Amendment, even though the language of the
Amendment itself applies only to suits in federal court. In Alden, the
court skirted the plain text of the Amendment by noting that
``sovereign immunity derives not from the Eleventh Amendment text but
from the structure of the original Constitution itself. Id., at 2254
Alden marked a recent chapter in the Supreme Court's widening scope of
the ``sovereign immunity'' protection given states by the Eleventh
Amendment.
Question 10. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress' power
and on the federal government's power compared with the power of state
governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
B. United States v. Lopez, 514 U.S. 549 (1995).
Answer 10. In Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme
Court upheld a federal law that prevented individual farmers from
growing more than a pre-determined amount of wheat. The validity of
this statute under the Commerce Clause (Art. I, Sec. 8) was based on
the Court's view that intrastate activity could be regulated by
Congress if, in the aggregate, the activity ``substantially affected
interstate commerce.''
In United States v. Lopez, 514 U.S. 549 (1995), the court
overturned the federal Gun-Free School Zones Act. In striking down this
Act, the Court relied on the commerce clause and rejected the
government's argument that the ``cost of crime'' in general had a
substantial affect on interstate commerce. The Court reasoned that such
an argument would justify a general federal ``police power,'' which was
inconsistent with the structure of the federal system of government.
The Commerce Clause was intended to preserve the concept of
federalism by reserving to the states the power to adopt their own
substantive laws and by limiting Congress's power to matters affecting
interstate commerce. Because the Commerce Clause itself provides scant
guidance, the Supreme Court has attempted over the years to strike a
difficult balance. The economic versus non-economic distinction
recently articulated by the Court appears to be an effort to bring
harmony to past precedent and guidance for future legislation.
Question 11. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
B. Printz v. United States, 521 U.S. 898 (1997).
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
E. Baker v. Carr, 369 U.S. 186 (1962).
F. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 11. The division of power between our federal and state
governments is fundamental to our notion of federalism. The
Constitution by the Commerce Clause and Amendments make this
fundamental concept clear. However, application of this basic concept
to specificfacts, often leads to conflicts between state and federal
powers. When such disputes arise, Article III courts are often called
upon to resolve them.
As noted above, the Supreme Court placed limits on Congress's
commerce power in Lopez v. United States, 514 U.S. 549 (1995),
construing the Commerce Clause of Article I, Sec. 8. In Alden v. Maine,
119 S. Ct. 2240 (1999), the Court extended Eleventh Amendment sovereign
immunity to states being sued in state court, thus limiting the ability
of an individual to seek redress in state court for violation of a
federal statute. Thus, the concept of federalism restricts both the
powers of the federal government as well as the rights of individuals
to seek redress against a state.
Printz v. United States, 521 U.S. 898 (1997) involved the
constitutionality of the Brady Act which imposed certain obligations on
state governments related to background checks for hundgun purchasers.
The Supreme Court of the United states reversed the Ninth Circuit and
held the act unconstitutional. Because the text of the Constitution
does not address this precise issue, the Court based its decision on
the structure of the Constitution and historical practice. The
structure of the Constitution, according to the Court, reveals a system
of ``dual sovereignty'' which would be violated if the federal
government were able to compel the states to exercise their police
power in furtherance of a federal statute. Thus, the Court concluded
that the Brady Act violates the principle of state sovereignty.
Baker v. Carr. 369 U.S. 186 (1962), was a landmark decision which
applied the equal protection clause of the Fourteenth Amendment to a
state reapportionment dispute. The Supreme Court held that the matter
was within the jurisdiction of the federal court and presented a
justifiable issue. The Court noted that federalism questions which
raise issues about the consistency of a state's actions with the
federal Constitution do not call for the judicial deference which would
be afforded to a purely political question; i.e., ones which chiefly
relate to questions about relations between coequal branches of the
government. The Baker case had the effect of requiring numerous states
to reapportion their legislatures on a ``one man, one vote'' basis, and
served to enfranchise many urban voters who were the subject of
apportionment ``discrimination.'' Thus, the Court in Baker construed
the federal Constitution to require the several states to apportion
their legislatures in a manner consistent with the Court's view of
equal protection.
In Shaw v. Reno. 509 U.S. 630 (1993), the Supreme Court of the
United States reversed a judgment of dismissal entered by a three-judge
District Court concerning certain aspects of North Carolina's
reapportionment plan for seats in the United States House of
Representatives. In the majority opinion, the court held that
plaintiffs had stated a claim under the equal protection clause by
alleging, inter alia, that the reapportionment plan was so irrational
on its face that the plan could be understood only as an effort to
segregate voters based on race. Such race-based apportionment would
require the district court on remand to determine whether the plan was
narrowly tailored to further a compelling governmental interest. Shaw,
therefore, applied the reverse discrimination standard in the context
of reapportionment, which was followed shortly thereafter in Adarand
Constructors v. Pena. 515 U.S. 200 (1995), a landmark decision
involving affirmative action in the employment context.
Our ``dual sovereignty'' system of government often results in
disputes over the exercise of political power and these cases
demonstrate the difficult issues which the courts are called upon to
address when dealing with the concept of federalism. Federalism
restricts the power of the federal government under the commerce clause
and protect state sovereignty under the Tenth and Eleventh Amendments
(see e.g. Lopez, Alden, Printz). Federalism also requires states to
exercise their political power consistent with dictates of the United
States Constitution (see e.g. Baker and Shaw).
Question 12. Do you believe that a federal district court has the
institutional expertise to set rules for and oversee the administration
of prisons, schools or state agencies?
Answer 12. I do not believe that federal district courts have the
institutional expertise to set rules for or oversee the administration
of prisons, schools, or state agencies.
Question 13. In some cases, statutes were in affect before the
ratification of a clause of the Constitution that is later used to
challenge the validity of those statutes. In ruling on the
constitutionality of a statute, what weight should a court give to the
fact that the challenged statute existed and was routinely enforced
before and after the ratification of the constitutional provision at
issue? Assume the court faces this issue as a matter of first
impression.
Answer 13. The Constitution is the supreme law of the land. A
statute is presumed to be constitutional. However, in a situation where
a constitutional provision is enacted after the statute, the
constitutional provision must prevail if the statute is in conflict
therewith. If the constitutional provision is clear, the court would
give little weight to the fact that an conflicting statute was roughtly
enforced before and after ratification of the constitutional provision
at issue. On the other hand, if there is no language of the ratified
provision which expressly conflicts with the language of the pre-
existing statute, then the fact that the statute existed and was
routinely enforced before and after ratification of the constitutional
provision should be given significant weight.
______
Responses of John E. Steele to Questions From Senator Thurmond
Question 1. Mr. Steele, we frequently hear the argument that the
courts act in response to various social problems because the
legislature has failed to act on important issues. What is your view of
courts acting in this manner?
Answer 1. Federal courts are, by design, courts of limited
jurisdiction. Our constitutional system does not vest federal courts
with the authority to remedy all problems perceived by all people. The
two other branches of government have responsibility for making
decisions on the multitude of choices which face a free society.
Federal courts become involved in cases or controversies only at the
request of parties, by virtue of a lawsuit being filed requesting the
court to intervene in a particular dispute and to impose a remedy or
sanction.
Question 2. Mr. Steele, do you have any personal objections to the
death penalty that would cause you to be reluctant to impose or uphold
a death sentence?
Answer 2. I do not have any personal objections to the death
penalty that would cause me to be reluctant to impose a death sentence
or to uphold a death sentence in accordance with the law.
Question 3. Mr. Steele, what is your view of mandatory minimum
criminal sentences, and would you have any reluctance to impose or
uphold them as a Federal judge?
Answer 3. Mandatory minimum sentences in criminal cases have
consistently been found to be constitutional, and I have no view which
would make me reluctant to impose such a sentence or to uphold such a
sentence.
Question 4. Mr. Steel, as you are well aware, the sentencing of
criminal defendants in Federal court is conducted under the Federal
Sentencing Guidelines. Some argue that the Guidelines do not provide
enough flexibility for the sentencing judge, while others say the
Guidelines provided needed consistency. What is your view of the
Federal Sentencing Guidelines and their application?
Answer 4. The Federal Sentencing Guidelines, which have now been in
effect for approximately thirteen years, carry out the Congressional
effort to create a system which distinguishes among different types of
criminal conduct and punishes accordingly. The Sentencing Guidelines
channel the courts sentencing discretion by requiring the utilization
of certain sentencing factors, and provide needed assistance in the
goal of consistency in sentencing. If confirmed, I would follow the
Sentencing Guidelines.
Question 5. Mr. Steel, as you know, the Prison Litigation Reform
Act was an attempt to limit prisoner litigation and court involvement
in prison operations. Do you believe that the Act has been beneficial
to the legal system or do you believe it places too many restrictions
on the ability of prisoners to make claims and for judges to remedy
Constitutional violations in the prison context?
Answer 5. Prison and prisoner litigation form a unique component of
the federal docket, and create a tension between the right to a fair
hearing and a heavy caseload. My general view is that the Prison Reform
Litigation Act has been beneficial to the legal system and has not
unduly restricted prisoners or judges.
Question 6. Mr. Steele, as you are aware, Federal Rule of Civil
Procedure 11 permits federal judges to impose sanctions against
attorneys for unwarranted claims or representations made in their
pleadings. Some say this rule is an important tool for judges, while
others believe it discourages litigants from testing the boundaries of
existing law. What is your opinion of Rule 11?
Answer 6. Rule 11 is an important procedural mechanism which
encourages litigants to present their cases in a responsible fashion
and provides judges with the ability to see that cases proceed in a
fair and expeditious manner. Rule 11 does not discourage litigants from
testing the boundaries of existing law.
______
Responses of John E. Steele to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect, even if you personally disagree with such precedent?
Answer 1. I am committed to following the precedents of higher
courts faithfully and giving them full force and effect. I will
faithfully follow such precedents even if I were to personally disagree
with such precedent.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores where the Court struck down the Religious
Freedom Restoration Act.
Answer 2. If I were fortunate enough to be confirmed as a district
court judge, I would be bound to follow the precedents of the Supreme
Court and the Court of Appeals in my circuit even if those courts had
seriously erred in rendering the decision. It would be inappropriate
for a district judge to simply use his or her own best judgment in the
face of such binding precedent.
Question 3. Regardless of your personal feelings of these issues,
are you committed to following precedent of higher courts on equal
protection issues?
Answer 3. I am committed to following the precedent of higher
courts on all issues, including equal protection issues, regardless of
any personal feelings I may have about an issue.
Question 4. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 4. I do not have any legal or moral beliefs which would
inhibit or prevent me from imposing a death sentence where authorized
by law and appropriate under the facts or in upholding a death sentence
in a criminal case in accordance with the law.
Question 5. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 5. Delays of ten, fifteen or even twenty years between
conviction of a capital offender and execution seem too long, despite
the importance of the matter under review. It is particularly important
in capital cases for federal courts to focus resources to resolve the
cases fairly and expeditiously.
Question 6. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of each of these authorities is
consistent with the exercise of the Article III judicial power.
Answer 6. In determining the legal effect of a statute or
constitutional provision, a federal judge may legitimately use the
specific language and plain meaning of the statute or constitutional
provision; the decisions of the Supreme Court interpreting the
constitutional provision or statute, as well as the opinions of the
circuit courts of appeal; the legislative history of the statute or
constitutional provision, the historical context of the constitutional
provision or statute; and the original intent of the drafters. Article
III judicial power directs that federal judges interpret the law in the
context of cases or controversies, not make the law in the first
instance. Each of these authorities provides guidance for a federal
judge to properly interpret the laws which Congress has enacted in the
first instance.
Question 7. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and
theoriginal intent of the Framers of the Constitution; (2) discernment
of the ``community's interpretation'' of constitutional text, see
William J. Brennan, The Constitution of the United States; Contemporary
Ratification, Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 7. The Supreme Court has consistently held that it properly
interpret the Constitution, including deciding claims of a
constitutional right not previously upheld by a court, it is proper and
necessary to look to the plain meaning of the text and the original
intent of the Framers. (Approach 1). Discernment of the ``community's
interpretation'' of the constitutional text is not a legitimate means
to establish a constitutional right not previously upheld by a court.
(Approach 2). Ratification of an amendment to the Constitution is
certainly a legitimate approach to establish a constitutional right
which had not been previously recognized. (Approach 3).
Question 8. How would you, if confirmed, analyze a challenge to the
constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 8. In each case where the constitutionality of a statue is
the issue, the analysis begins with a presumption that the statute is
constitutional. In a case which is not one of first impression, the
constitutionality of a statute is analyzed by reference to the
decisions of the Supreme Court of the United States and the Court of
Appeals for the Eleventh Circuit to determine the binding precedent in
the area. If there was no binding precedent, I would look to the other
circuit courts of appeal and district courts to see what these courts
have held concerning the constitutional challenge.
In a case of first impression, the constitutionality of a statute
is analyzed by an examination of the plain language of the statute as
well as the ``history, practice, precedent, and the structure of the
constitution.'' Alden v. Main, 527 U.S. 706, 741 (1999). The court
looks to evidence of the original understanding of the Constitution,
including its specific language and historical context. The court also
examines the theory and reasoning of other Supreme Court cases which
touch upon the area.
Question 9. In your view, what are the sources of law and methods
of interpretation used in reaching the court's judgment in the
following cases? How does the use of these sources of law impact the
scope of the judicial power and the federal government's power under
Article III?
A. Griswold v. Connecticut, 381 U.S. 479 (1965)
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 9. In Griswold, the Court looked to the Constitution and the
privacy. the Court then examined its prior decisions construing
constitutional amendments and found the existence of ``peripheral
rights'' which secured the amendments. From an examination of the
various specific and peripheral rights the Court concluded there was a
``penumbra'' of rights under the First Amendment which included the
protection of privacy. The Court also examined other amendments, and
found they too had penumbras ``formed by emanations from those
guarantees that help give them life and substance.'' The Court found
that privacy was a penumbra for several constitutional amendments, and
was therefore a legitimate constitutional right.
In Alden, the Court looked to the structure of the Constitution
based upon its textual provisions and certain amendments; the history
of the Constitution and the intent of the generation which had designed
and adopted the federal system; and the constitutional interpretations
by the Court in it prior cases. The Court then set forth the issue as
being whether Congress had the power under Article I to subject
nonconsenting States to private suits in their own courts. The Court
found that Eleventh Amendment sovereign immunity and the system of
federalism established by the Constitution provided separate and
independent structural principles to guide the inquiry. The court
concluded that Congress, in exercising its Article I powers., may
subject the States to private suits in their own courts only if there
was compelling evidence that the States were required to surrender this
power to Congress pursuant to the constitutional design.
The impact of Griswold has been to expand the scope of judicial
power under Article III and the power of the federal government. Since
a federal court may only exercise jurisdiction in limited types of
``cases or controversies,'' and a claim arising under federal law is
one such type of case, finding a constitutionally-based right to
privacy extends the power of federal courts. There is no direct impact
on federal judicial power by Alden, since the case dealt with suits
against a State filed in state court. Alden limits the power of
Congress to the extent that it creates a rather high evidentiary
standard before a federal statute may allow a suit against a State,
even in state court.
Question 10. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress's
power and the federal government's power compared with the power of
state governments.
A. Wickard v. Filburn. 317 U.S. 111 (1942).
B. United States v. Lopez. 514 U.S. 549 (1995).
Answer 10. In Wickard, the Court upheld the authority of Congress
under the Commerce Clause over certain intrastate economic activity.
The Court described in some detail the development of the Commerce
Clause jurisprudence under the Court's prior decisions. Under the facts
of the case, this decision established the broad reach of Congressional
authority under the Commerce clause and consequently expanded the
nature of cases which could be brought in federal court.
In Lopez, the Court found that Congress did not have authority over
all intrastate activity under the Commerce Clause. The Court recognized
its prior cases, including Wickard, and followed the historical
development of its cases and the shift from preventing state
discrimination against interstate commerce to determining the
categories of activities Congress may regulate under the Commerce
Clause. The court concluded that Congress may regulate three broad
categories of activities, including those activities which have a
substantial affect on interstate commerce. The Court held that the Gun
Free School zone Act exceeded Congress' authority under the Commerce
Clause.
The impact of Lopez is clearly to limit the power of the federal
government and the federal courts. It confines to the state governments
and courts the power to address the problems identified by Congress but
which the Court found to have insufficient effect on interstate
commerce to allow Congressional action.
Question 11. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
A. United States v. Lopez. 514 U.S. 549 (1995).
B. Printz v. United States, 521 U.S. 898 (1997).
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
D. Baker v. Carr, 369 U.S. 186 (1962).
E. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 11. The very structure of the federalism set forth in the
Constitution calls for a division of power between the national and
state governments. Concepts of federalism have limited the power of
federal judges, as well as the federal government, in favor of the
state governments and courts.
Lopez limited the power of the federal government to pass statutes
under the authority of the Commerce Clause, particularly in the area
traditionally considered to be within the states' police power, and
found that that power rested largely with the states. Printz affirmed
that the federal government could not, consistent with principles of
federalism, compel the states or their officers to enact or administer
a federal regulatory program. Alden establised that Congress could not
authorize suit against nonconsenting states in state courts. Baker held
that a federal court had jurisdiction over an apportionment dispute
because it stated a claim under the Equal Protection Clause, and was
not a nonjusticiable political question. Shaw expanded the jurisdiction
of federal courts by finding that an equal protection claim was stated
in a reapportionment scheme which was alleged to be so irrational on
its face that it could only be meant to segregate voters based on race.
Question 12. Do you believe that a federal district court has the
institutional expertise to set rules for and oversee the administration
of prisons, schools, or state agencies?
Answer 12. Federal district courts have no institutional expertise
to set rules for and oversee the administration of these types of
facilities.
Question 13. In some cases, statutes were in effect before the
ratification of a clause of the Constitution that is later used to
challenge the validity of those statutes. In ruling on the
constitutionality of a statute, what weight should a court give to the
fact that the challenged statute existed and was routinely enforced
before and after the ratification of the constitutional provision at
issue? Assume the court faces this issue as a matter of first
impression.
Answer 13. The analysis of the constitutionality of a statute
begins with the presumption that the statute is constitutional. In a
case of first impression, the constitutionality of a statute is
analyzed by an examination of the plain meaning of the statute, as well
as the ``history, practice, precedent, and the structure of the
Constitution.'' Alden v. Maine, 527 U.S. 706, 741 (1999). The court
looks to evidence of the original understanding of the Constitution,
including its specific language and historical context. The court also
examines the theory and reasoning of other Supreme Court cases which
touch upon the area, and considers whether the statute is consistent
with the structure of the Constitution. Significant weight should be
given by a court to the fact that the statute existed and was routinely
enforced before and after ratification of the constitutional provision.
NOMINATIONS OF MICHAEL JOSEPH REAGAN, MARY H. MURGUIA, SUSAN RITCHIE
BOLTON, AND JAMES A. TEILBORG (U.S. DISTRICT JUDGES)
----------
TUESDAY, JULY 25, 2000
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:13 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jon Kyl,
presiding.
Also present: Senator Leahy.
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Senator Kyl. The committee will come to order.
Today the Judiciary Committee is holding its sixth
nominations hearing of the second session of the 106th
Congress. At this hearing we will consider the nominations of
four individuals who have been nominated by the President to be
Federal judges. We will have two witnesses--excuse me, two
panels of witnesses this afternoon.
The first panel will consist of the sponsors of the
nominees, who will give brief statements on behalf of their
nominees, and the second panel will consist of the four
district court nominees. They are: Susan Ritchie Bolton, of
Arizona, to be U.S. District Judge for the District of Arizona;
Mary Murguia, of Arizona, to be a U.S. District Judge for the
District of Arizona; Michael Joseph Reagan, of Illinois, to be
a U.S. District Judge for Southern District of Illinois; and
Jim Teilborg, of Arizona, to be a U.S. District Judge for the
District of Arizona.
If one of the members of the minority are able to attend
the hearing, I will afford them an opportunity to make a
statement when they arrive.
At this time, if the sponsors of the nominees will take
their seats at the witness table, we can begin. Representative
Pastor, why don't you join Senator Durbin. I think that
represents the sponsors, and we will hear from that at this
point, starting with Senator Durbin.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Senator Kyl, thank you for this hearing,
and I want to especially thank Senators Hatch and Leahy for
their hard work in preparing for this day to consider the
nomination of Michael Reagan to be district court judge for the
Southern District of Illinois.
Mike Reagan is from not only my home State of Illinois but
my home county of St. Clair. I am sure that the committee is
aware that Senator Fitzgerald and I may be of opposite
political faith, but we work closely together in bringing these
judicial nominees before the committee. I am happy to report
that with Mr. Reagan's consideration today, we will have
completed a 2-year agreement on the appointment of judges,
which has been bipartisan from the start.
I also want to say that Senator Fitzgerald believes, as I
do, that Michael Reagan possesses all the qualities necessary
to make a tremendous contribution to the Federal bench. In
addition Mike Reagan has the support of several respected
judges, both State and Federal, organizations including the
National Sheriffs Association, the Chief Justice of the
Illinois Supreme Court, the bishop of the Diocese of
Belleville, the Illinois Federation of Teachers, and the
Illinois Pharmacists Association. The list goes on and on. They
have written letters in support of his candidacy. They believe,
as I do, he will be an excellent addition to the Federal bench.
Mike Reagan is a full-time public servant who wears many
hats. He serves as commissioner for the Attorneys Registration
and Disciplinary Commission for the Supreme Court of Illinois
and has held that position since 1995.
When you look at his background, you understand that Mike
Reagan was not born to privilege. He worked very hard for his
education as well as his professional achievement.
I have always found it very interesting when I considered
his nomination that Mike Reagan served as a police officer
after graduating from Bradley University in 1976 until he
received his law degree from St. Louis University in 1980. He
has many notable positions, but the most important is the role
that he plays as husband and father. He is here today with his
wife, Elaine--they will be celebrating their 25th wedding
anniversary next year--and their four sons: Justin, Michael,
Bradley, and Jonathan.
Members of Mr. Reagan's family are here and are proud, as I
am, to present his name to the committee. I am happy to
introduce a man with a rare combination of intelligence,
practical experience, temperament, and devotion to public
service that will make for a great Federal judge.
I thank you for the prompt consideration of Michael Reagan.
Senator Kyl. Thank you very much, Senator Durbin. That is a
great introduction.
Let me now call on Representative Pastor.
STATEMENT OF HON. ED PASTOR, A U.S. REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Pastor. Thank you, Mr. Chairman.
The nominees from Arizona, you and I have worked on them
for about 6 months, so you probably know them as well if not
better than I do. In some cases you do. But it is with great
pride, Mr. Chairman, that I am here supporting the three
nominees for Arizona.
Judge Bolton has been a judge, as you know, for the
superior court since 1989, and she has been a partner in a law
firm, and as you know, she has served Arizona well, Maricopa
County well, and she rates very high as they assess judges when
they are up for their renomination.
Jim Teilborg, whom you know, is a good friends of yours,
and we are very happy to be here in support of him. He has
practiced law in Maricopa County for many years and has been a
partner for law firms throughout Phoenix and has a very
distinguished career.
I am also very proud to bring to the committee Mary
Murguia. As you know, she is the Assistant U.S. Attorney for
the District of Arizona and has been there since 1990, and
currently is on detail here in the District of Columbia as the
Director of the Executive Office for U.S. Attorneys and the
Department of Justice.
As you know, in Arizona, there was a concern that we did
not have gender representation in the Federal bench, and I am
happy that today we have two women that are being considered.
And Ms. Murguia will make history in that she will be the first
Latina Federal judge in the great State of Arizona.
And so with great pride I recommend all three. They will
serve Arizona well, and they will make us proud.
Senator Kyl. Thank you very much, Representative Pastor.
Let me say a few words. It is not uncommon for the
individual chairing the committee to make a few remarks since
frequently if it is a member of the committee who is a sponsor,
it is an appropriate opportunity to say a few words. And I
would like to add my thoughts to those of Representative Pastor
with respect to the Arizona nominees who are here before us.
Representative Pastor and I have what I would characterize
as an excellent working relationship as a House Democrat and
Senate Republican both representing our State. Representative
Pastor, being of the political party of the President, has had
significant influence in working with the White House on
judicial nominations and also the nominee for U.S. attorney for
Arizona. And as a member of the Judiciary Committee, I have had
the pleasure of working very closely with Representative Pastor
to try to get our nominees through quickly, and we have done
very, very well at that, I think, working together.
And with respect to these three nominees, Representative
Pastor is exactly right. These are three very, very highly
qualified candidates from Arizona.
In the case of Judge Bolton, it is a bit of a bitter pill,
as a former member of the practicing bar in Arizona, to see
Judge Bolton leave the Maricopa County Superior Court bench.
And I will tell you a little story that makes the point.
Yesterday, I was involved in lengthy negotiations with
representatives from Arizona, including the Gila River Indian
community, who have also worked closely with Representative
Pastor, over resolution of water rights claims in Arizona. And
those of you from Arizona know these are some of the most
important issues confronting our State.
Well, there is one person in our State who is a real expert
on this in the judiciary, and that is Judge Bolton. And because
of her expertise and fairness, all of the contending interests
in Arizona have been willing to place their concerns before her
to be resolved. And she is right in the middle of this
important litigation right now. They will be very sorry to see
her leave the Maricopa County Superior Court bench.
So it is a little bit--I have some mixed emotions in
helping to nominate or to confirm Judge Bolton, but that is how
highly thought of she is.
I have a confession to make this morning as well.
Representative Pastor alluded to the fact that I have known Jim
Teilborg for a long time--well, only since 1964, when he and I
were law school classmates together, Senator Durbin, and we
studied together in the same little group. Jim then went on to
a highly successful practice, a career in Phoenix, AZ, becoming
a partner in a firm that he founded, very successfully,
primarily focusing on civil litigation matters. And I think he
will bring an extraordinary amount of experience on the civil
side to the Federal district court in Phoenix.
And then Mary Murguia. Mary is the other side of the coin
with a career of experience as a prosecutor with the U.S.
Attorney's office, first practicing as a prosecutor in Kansas
and then with the U.S. attorney in Arizona. And with her wealth
of experience on the criminal side of the equation, I told her
yesterday, ``I hope you will sit Jim Teilborg down and teach
him the ropes on the criminal law, and I know he will do the
same with you with the civil.'' And we are going to have just
an enormously significant contribution to our bench as a result
of bringing these different areas of expertise to the Arizona
Federal District Court.
So, as Representative Pastor said, he and I have been
working to try to find the very best candidates that we could
suggest to the President. The President and his folks at the
Department of Justice and the White House have been very
helpful in getting these candidates vetted quickly so that we
could try to get them confirmed before the end of the session.
And I am just very pleased that Michael Reagan from Illinois
and our three candidates from Arizona are here today.
Now, with that, I want to--I will excuse our two sponsors.
Go ahead, Representative Pastor.
Mr. Pastor. Mr. Chairman, Jim also gave a secret this
morning when he met with me. He said that because of his class
notes and his mentoring that you were successful in graduating
from the U of A Law School. [Laughter.]
Senator Kyl. Others have also taken credit for that.
Thank you both very, very, much. We appreciate your
sponsorship of these candidates.
Senator Kyl. Now, let me make one other point before I ask
the candidates to come to the table. Those of you who are here
as family have a great deal of reason to be proud of the
members of your family who are here, or if you are here as
friends or associates, the same kind of pride will certainly be
with you today. You may wonder because this hearing is only
being conducted by one Senator--and I will tip you off in
advance that they are not in for a real tough grilling. You may
wonder whether or not this is really that serious of a process.
And I have to let you in on a secret.
The reason why this hearing is not the highly charged,
well-attended, difficult grilling of candidates that you have
perhaps seen on some occasions is because these four candidates
are of such high quality. They have been vetted with my
colleagues, with the staff, with outside groups, and there is
nothing wrong with them.
And as a result, my colleagues have made it pretty clear to
me that these candidates are going to be treated very well by
the United States Senate very quickly. And as a result, it is
not necessary to spend a great deal of time on very difficult,
personal questions and that kind of thing. They all have great
backgrounds, and for that reason we won't need to spend a huge
amount of time.
But, believe me, it does not represent a lack of interest
but, rather, the high quality of the candidates who are here
that we will not take all that much time this afternoon to
conduct this hearing.
But, with that said now, I would like the four candidates
to please come forward and take a seat at the table, and I will
swear you in after you are all ready here.
Actually, before you sit down, why don't you join me in
this oath, please? Do you swear that the testimony you will
give in this hearing shall be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Reagan. I do.
Ms. Murguia. I do.
Judge Bolton. I do.
Mr. Teilborg. I do.
Senator Kyl. Thank you. Please have a seat.
Now, let me ask each of you in turn, first of all, if you
have family or friends here you would like to introduce, to do
so. Mr. Reagan, starting with you, please.
TESTIMONY OF MICHAEL JOSEPH REAGAN, OF ILLINOIS, TO BE U.S.
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS
Mr. Reagan. Thank you, Your Honor, and thank you for the
honor to be here.
My wife is here, Elaine. My oldest son, Justin, who is 20
and attends St. Louis University, is here. My second son,
Michael, who is 17, is with me today. My third son, Bradley,
who is 15, is with me here today. And last, but not least, is
my youngest son, Jonathan, who is 14 and with me today.
Senator Kyl. Great. Well, welcome to all of you. This is a
great day, and we are happy to have you here.
I know that Mary Murguia has several members of her family
to introduce. Mary.
TESTIMONY OF MARY H. MURGUIA, OF ARIZONA, TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF ARIZONA
Ms. Murguia. That is true, and it is an honor to be here.
Thank you, Mr. Chairman.
I would first like to introduce my parents: Mr. Alfred O.
Murguia and Amalia Murguia. If they could please stand? They
came from Kansas City yesterday to be here with me today.
My oldest sister, Martha Hernandez, is here today. My
brother, Alfred Murguia, from Kansas City, is also here today.
My sister, RoseMary Murguia, who works at UMB Bank in Kansas
City, is here today. My brother, Carlos Murguia, who is a
Federal district court judge in Kansas, is present today. My
brother, Ramon Murguia, a lawyer in Kansas City in private
practice, and who is also chairman of the board of the National
Council of La Rasa, is here with me today. My sister, my twin
sister, Janet Murguia, is present. She formerly worked on the
Hill and most recently with the Congressional Leg Affairs
Office at the White House, is present.
I have some nephews. My nephew, Ryan, who is 17 years old
today, is here. My nephew, Nicholas, a 14-year-old, is here
today. And my niece, Kelly, who is 12 years old, is here today.
I have some sisters--two of my sister-in-laws could not be
here along with their children, but I know they are here in
spirit supporting me.
I have a couple other friends I'd like to identify. I have
a good friend from the Department of Justice, Bea Witzleben,
who is Associate Deputy Attorney General at the Department of
Justice, is here, along with her sister, Claire, from
Philadelphia. And I have a friend from Arizona, Sharon Kurn,
who is currently an assistant U.S. attorney in the District of
Columbia U.S. Attorney's Office, is here today.
A friend of mine, a dear friend, Charlie Steel, who is
currently deputy general counsel at the FBI, and was formerly a
supervisor with me in the U.S. Attorney's Office in the
District of Arizona, is here today.
Another friend of mine, a partner at Baker and Botts, Diana
Dietrich, is here today. And I have several other individuals
who are with me and colleagues over at the Department, and I
would just ask for them to all stand because I'd like for them
to be acknowledged as well.
Senator Kyl. The DOJ contingent, great. We are happy to----
[Laughter.]
Senator Kyl. That is great. Who is minding the store down
there?
Senator Leahy. The police officer said that there was a
much larger crowd than usual in the Dirksen Building. I think
they all came here.
Ms. Murguia. Thank you, sir.
Senator Kyl. Well, Mary, thank you. And we welcome all of
the members of your family and your friends who are here. This
is a great occasion, and the second occasion for your parents.
And I know the two of you must be very proud of all of your
children for what they have accomplished here.
Sort of by prearrangement, I am kidding now, but Judge
Bolton and Jim Teilborg figure that since Mary has used up the
quota of Arizona relatives, they haven't brought a lot of
friends and relatives here. I neglected to ask. Do either of
you have any guests here? Judge Bolton.
TESTIMONY OF HON. SUSAN RITCHIE BOLTON, OF ARIZONA, TO BE U.S.
DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA
Judge Bolton. Mr. Chairman, I do not. Unfortunately, my
husband, Bob Bolton, and my parents, Charles and Margaret
Ritchie, were not able to be here, but they are certainly here
in spirit.
Senator Kyl. Great.
Judge Bolton. And I feel their love and support.
Senator Kyl. Thank you.
Jim.
TESTIMONY OF JAMES A. TEILBORG, OF ARIZONA, TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF ARIZONA
Mr. Teilborg. Thank you, Mr. Chairman, for convening this
committee. My wife of 38 years, Connie, is unable to be here,
nor are my sons, Andy and Jay, nor are my parents, Ralph and
Erma Teilborg. But, likewise, I know they are here in spirit.
Senator Kyl. Great. I was kidding about Mary using up the
quota of Arizona guests, but everybody is well represented one
way or another. We appreciate that very much.
Before I ask each of you to make a statement and respond to
any questions we have, since Senator Leahy has now joined us, I
will ask him if he has any comments he would like to make at
this time.
Senator Leahy. Thank you very much, Mr. Chairman. I am just
going to put my statement in the record. I don't want to delay
this. I saw Senator Durbin and Representative Pastor outside,
and I know they have testified here, too. And I am glad to see
this panel from Arizona. I know that the presiding chairman
will give you a really tough and rough time, but you will
probably make it through.
Mr. Reagan, Senator Durbin has asked me about you every day
for the last several weeks, and my good friend, MichelleLaxalt,
has done the same, and I get e-mails from her saying that if I have any
idea how to do my job, I would make sure you were here. Actually, she
was a lot nicer than that, I want to assure you. I would have gone to
that at the next level if we hadn't gotten you here, so I am delighted
you are here.
I will put my full statement in the record and leave you
all to the tender mercies of Jon Kyl.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the
State of Vermont
I want to thank the Chairman for calling this important nominations
hearing today. I am glad to see the Committee working to fulfill its
constitutional responsibility to review the President's nominees to
various courts around the country. I look forward to hearing from each
of the District Court nominees included in today's hearing. With 60
current and continuing vacancies within the federal judiciary, and
seven more on the horizon, we cannot afford to slow down the progress
we are making and the work we are doing to help the President fill
those vacancies with qualified people to oversee the administration of
justice.
I am, nonetheless, sorely disappointed to see another hearing come
and go without even one nominee to fill one of the many vacancies to
the Courts of Appeals around the country. I was encouraged to hear
Senator Lott recently say that he continues to urge the Judiciary
Committee to make progress on judicial nominations. The Majority Leader
said: ``There are a number of nominations that have had hearings,
nominations that are ready for a vote and other nominations that have
been pending for quite some time and that should be considered.'' He
went on to note that the groups of judges he expects us to report to
the Senate will include ``not only district judges but circuit
judges.'' Unfortunately, the Committee has not honored the Majority
Leader's representations and is only willing to consider these few
District Court nominees at today's hearing.
Pending before the Committee are a dozen nominees to the Federal
Courts of Appeals who are awaiting a hearing--12 nominees, not one of
which the Republican Majority saw fit to include in this hearing. Left
off the agenda are Judge Helene White of Michigan, who is now the
longest pending judicial nomination at 43 months without action; Barry
Goode, whose nomination to the Ninth Circuit was the subject of Senator
Feinstein's statements at our Committee meeting last Thursday and who
has been pending for over two years; as well as a number of qualified
minority nominees whom I have been speaking about throughout the year,
including Kathleen McCree Lewis of Michigan, Enrique Moreno of Texas
and Roger Gregory of Virginia.
I noted at our last meeting of the Judiciary Committee that there
continue to be multiple vacancies on the Fourth, Fifth, Sixth, Ninth,
Tenth and District of Columbia Circuits. With 20 vacancies, our
appellate courts have nearly half of the total judicial emergency
vacancies in the federal court system. I know how fond our Chairman is
of percentages, so I note that the vacancy rate for our Courts of
Appeals is more than 11 percent nationwide. Of course that vacancy rate
does not begin to take into account the additional judgeships requested
by theJudicial conference to handle their increased workloads. If we
added the 11 additional appellate judges being requested, the vacancy
rate would be 16 percent. By comparison, the vacancy rate at the end of
the Bush Administration, even after a Democratic Majority had acted in
1990 to add 11 new judgeships for the Courts of Appeals, was only 11
percent. Even though the Congress has not approved a single new Circuit
Court position within the federal judiciary since 1990, the Republic
Senate has lost ground in filling vacancies on our appellate courts.
At our first Executive Business Meeting of the year, I noted the
opportunity we had to make bipartisan strides toward easing the vacancy
crisis in our nation's federal courts. I believed that a confirmation
total of 65 by the end of the year was achievable if we made the
effort, exhibited the commitment, and did the work that was needed to
be done. I urged that we proceed promptly with confirmations of a
number of outstanding nominations to the Court of Appeals, including
qualified minority and women candidates.
Yet only five nominees to the appellate courts around the country
have had nomination hearings this year and only three of those five
have been reported by the Committee to the Senate and confirmed--only
three all year. The Committee included no Court of Appeals nominees at
the hearings on April 27 and July 12, and there are no Court of Appeals
nominee at the hearing today. The committee has yet to report the
nomination of Allen Snyder to the District of Columbia Circuit,
although his hearing was eleven weeks ago, or the nomination of Bonnie
Campbell to the Eighth Circuit, although her hearing was eight weeks
ago.
At the June 27 executive business meeting, Chairman Hatch compared
this year's confirmation total against totals from other presidential
election years. The only year to which this can be favorably compared
was 1996 when the Republican majority in the Senate refused to confirm
even a single appellate court judge to the federal bench. Again, that
is hardly a comparison in which to take pride. Let us compare to the
year 1992, in which a Democratic majority in the Senate confirmed 11
Court of Appeals nominees during a Republican president's last year in
office among the 66 judicial confirmations for the year.
I remember in 1992, in the waning days of the Bush Administration,
Timothy Lewis was nominated to fill a vacancy on the Third Circuit. His
nomination was received by the Democratic Congress on September 17; his
hearing was held September 24; he was reported to the floor on October
7; and he was confirmed on October 8. In fact, in 1992 the Committee
held 15 hearings--twice as many as this Committee has found time to
hold this year. Late that year, we met on July 29, August 4, August 11,
and September 24, and all of the nominees who had hearings then were
eventually confirmed before adjournment. We have a long way to go
before we can think about resting on any laurels.
Having begun so slowly in the first half of this year, we have much
more to do before the Senate takes its final action on judicial
nominees this year. We cannot afford to follow the ``Thurmond Rule''
and stop acting on these nominees now in anticipation of the
presidential election in November. We must use all the time until
adjournment to remedy the vacancies that have been perpetuated on the
courts to the detriment of the American people and the administration
ofjustice. That should be a top priority for the Senate for the rest of
this year. In the last 10 weeks of the 1992 session, between July 24
and October 8, 1992, the Senate confirmed 32 judicial nominations. I
will work with the Republican Majority to try to match that record.
One of our most important constitutional responsibilities as United
States Senators is to advise and consent on the scores of judicial
nominations sent to us to fill the vacancies on the federal courts
around the country. I continue to urge the Senate to meet its
responsibilities to all nominees, including women and minorities. That
these highly qualified nominees are being needlessly delayed is most
regrettable. The President spoke to this situation earlier this month
in his appearance before the NAACP. The Senate should join with the
President to confirm these well-qualified, diverse and fair-minded
nominees to fulfill the needs of the federal courts around the country.
I commend the Senators from Illinois and Arizona for working to
bringing these nominees forward to fill positions on the District
Courts of Illinois and Arizona. The Arizona vacancies are each judicial
emergency vacancies. Two were authorized in appropriations legislation
last year when the Republicans Majority continued its refusal to
consider a bill to meet the judicial Conference's recommendation for 72
additional judges around the country. All we were able to authorize
were a few judgeships in Arizona, Florida and Nevada.
Judge Bolton, Mary Helen Murguia and James Teilborg were all
nominated just last Friday. They are now having their hearing, and they
have been promised a vote out of committee this coming Thursday. I am
happy to see us moving so swiftly on these nominees. These nominees may
show that judicial nominees can be confirmed is as little as a week's
time if Senators put their minds to it and make some effort. All the
talk about needing six months or more to process and review nominees
turns out to be just that--talk. If we can consider these nominees this
week, we should be able to consider many other nominees on a similarly
expedited schedule. There is no excuse for holding up nominations for
months and years as has been the practice since 1996. The precedent is
now being set for quick approval by this Committee.
Having a hearing does not automatically guarantee someone a vote
before this Committee, however. Bonnie Campbell, nominated by the
President on March 2, 2000, has completed the nomination and hearing
process and is strongly supported by Senator Grassley and Senator
Harkin from her home state. But her name continues to be left off the
agenda at our executive meetings. The same goes for Allen Snyder. Mr.
Snyder was nominated on September 22, 1999, received the highest rating
from the ABA, enjoys the full support of his home state Senators, and
had his hearing on May 10, 2000. The committee has yet to vote on
either of these outstanding nominees, and I am not sure why, but I hope
they will be included for action this Thursday.
I continue to urge the Senate to meet its responsibilities to all
nominees, including women and minorities. That highly-qualified
nominees are being needlessly delayed is most regrettable. The Senate
should join with the President to confirm well-qualified, diverse and
fair-minded nominees to fulfill the needs of the federal courts around
the country.
Questioning by Senator Kyl
Senator Kyl. Thanks, Pat.
Well, let me ask each of you if you would like to make a
statement at this time. The committee would be happy to have
that statement for the record, and I would also note that the
record will remain open until the close of business today for
any other Senators to submit written questions.
The panelists are well aware of the fact that we are trying
to move the nominations expeditiously, and, therefore, any
responses to those questions should also be submitted as soon
as possible in order for us to move forward.
Mr. Reagan, let me start with you and ask if you would like
to make a brief statement.
Mr. Reagan. Mr. Chairman, I have no statement other than to
thank the committee for the honor and the pleasure of being
here.
Senator Kyl. You are very welcome.
Mary Murguia.
Ms. Murguia. No, sir. I just want to also thank you and the
committee for the honor of being here.
Senator Kyl. My pleasure. Judge Bolton?
Judge Bolton. Mr. Chairman, I also have no statement, but
also wanted to express my gratitude to you and the committee
for holding these hearings today.
Senator Kyl. Jim Teilborg.
Mr. Teilborg. Likewise, Mr. Chairman, thank you very much
for conducting this hearing, and I have no opening statement.
Senator Kyl. OK; well, now begins the exam, then.
Let me just ask each of you some questions that other
members of the committee have submitted from time to time, and
one question that I have found useful to ask, the first one
here. And perhaps we could begin, since I have started twice
with Michael Reagan, start with Jim Teilborg here and we will
just go down and ask each one of you to provide an answer to
the question, and then reverse the order and so on.
The first has to do with judicial activism, a subject that
all the members of the committee are interested in. As all of
you know, the Founding Fathers believed that the separation of
powers in a government was critical to protecting the liberty
of the people. Therefore, they separated the legislative, the
executive, and the judicial branches into three different
powers of government, and the legislative power being the power
to balance the moral, economic, and political considerations
and make law, the judicial power being the power only to
interpret the laws made by Congress and by the people.
In your view, is it the proper role of a Federal judge when
interpreting a statute or the Constitution to accept the
balance struck by Congress or to rebalance the competing moral,
economic, and political considerations? And under what
circumstances do you believe that it is appropriate for a
Federal court to declare a statute enacted by Congress
unconstitutional?
Mr. Teilborg. Well, Mr. Chairman, I certainly appreciate
the balance of powers, and I appreciate the limited
jurisdiction and sphere of the Federal court. And in connection
with declaring a law unconstitutional, certainly the court must
first determine whether or not there is a constitutional issue,
must follow the maxims of presumption of constitutionality,
attempting to give the statute its plain meaning, and several
other maxims. And I'm certainly committed to doing that if I am
fortunate enough to be confirmed.
Senator Kyl. Thank you.
Judge Bolton.
Judge Bolton. Mr. Chairman, I think that the Constitution
struck an appropriate balance of powers among the executive,
the legislative, and the judiciary, and it's very important
that members of the judiciary remember the limited role that
they play in that balance and should never attempt to unbalance
that.
There are rare circumstances when judges are compelled to
declare statutes unconstitutional. But that should only be done
when it is the only alternative, when there is no
constitutional interpretation that can be placed, where the
case cannot be decided on non-constitutional grounds, and when
there is no narrower interpretation that can be made of the
statute.
Senator Kyl. Mary Murguia.
Ms. Murguia. I agree with what's been stated, and I just
assure you I know what the role of the judge is to be, and that
is not to legislate from the bench and to accept the law that
has been handed down by the Supreme Court and uphold the
Constitution. And if I'm so fortunate to be confirmed, I would
pledge to do that.
Senator Kyl. Thank you.
Michael Reagan.
Mr. Reagan. Mr. Chairman, I adopt my colleagues' comments
and would note that it is not permissible to encroach upon the
separation of powers. We would all be shocked if a Member of
Congress would walk down to the district court, sit on the
bench, and try to call the next case. That would be an
impermissible encroachment. Similarly, I don't think judges
should legislate from the bench.
Senator Kyl. Thank you very much.
The next question has to do with adhering the precedent,
and let me begin with you, Mr. Reagan. SupremeCourt precedents
are binding on all lower Federal courts, and the circuit court
precedents are binding on the district courts within a particular
circuit.
Are you committed to following the precedents of higher
courts faithfully and giving them full force and effect, even
if you personally may disagree with those precedents?
Mr. Reagan. Mr. Chairman, if I'm honored by this committee
and the Senate and am confirmed, I can tell you not only that I
can do that, but I will do that.
Senator Kyl. Before I ask you to pass, let me add another
personal note. When the issue was before the Congress as to
whether to divide or split the Ninth Circuit Court of Appeals,
which, as you all know, is very large, the comment was made to
me, actually by a circuit court judge, I am sorry to say, that
he felt that there should be a representation of different
areas of the country within a circuit in order to give the
flavor of that area to the circuit. And I thought at the time
that coming from a circuit court judge bound by the precedent
of the Constitution and the U.S. Supreme Court that was a
rather odd comment.
Let me add that little observation to the mix here, if you
would like to comment on that. Mary.
Ms. Murguia. Mr. Chairman, as a Federal district court
judge, if I was fortunate to be confirmed, I would be bound by
the precedents set forth by the Supreme Court and the appellate
courts. And I understand that and I would adhere to that.
Senator Kyl. Judge Bolton.
Judge Bolton. Mr. Chairman, if confirmed as a Federal
district judge, I would be bound and would follow the
precedents set out by the U.S. Supreme Court and by my circuit.
And my personal views would never prevent me from following
that precedent.
Senator Kyl. Jim Teilborg.
Mr. Teilborg. Likewise, Mr. Chairman, I will be bound by
the precedent of the Ninth Circuit as well as the precedent of
the Supreme Court.
Senator Kyl. Thank you. Now, let me, again, starting with
you, Mr. Teilborg, go through one other question, which from
time to time has arisen and is now in the news. It has to do
with the death penalty.
Do you have any legal or moral beliefs which would inhibit
or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a Federal
judge?
Mr. Teilborg. I have no legal or moral belief or anything
else in my belief system that would prevent me from applying
the death penalty as found constitutional by the Supreme Court.
Senator Kyl. Judge Bolton.
Judge Bolton. Mr. Chairman, in my 11 years as a superior
court judge, I have had the occasion three times to consider
the imposition of the death penalty on persons convicted of
first-degree murder and have imposed the death penalty on one
of those three occasions. And so, obviously, my personal view
of the death penalty does not prohibit me in any way from
applying the constitutional death penalty that has been upheld
both by the U.S. Supreme Court and the Arizona Supreme Court.
Senator Kyl. Thank you.
Mary Murguia.
Ms. Murguia. Similarly, Mr. Chairman, the Supreme Court has
found the death penalty to be constitutional. There is nothing
in my personal views that would prevent me from following the
law.
Senator Kyl. Thank you.
Michael Reagan.
Mr. Reagan. Mr. Chairman, Gregg v. Georgia is the state of
the law in the death penalty in this country. There are
numerous references to the death penalty or capital punishment
in the Constitution. There is nothing in my background,
education, training, or experience nor do I harbor any personal
belief that would preclude me from following the precedent of
the United States Supreme Court or the Seventh Circuit Court of
Appeals.
Senator Kyl. Thank you.
Another question that has been submitted has to do with
affirmative action, and let me read it. And I will start with
you, Mr. Reagan. Please state in detail your best independent
legal judgment on the lawfulness under the Equal Protection
Clause of the 14th Amendment and Federal civil rights laws of
the use of race, gender, or national origin-based preferences
in such areas as employment decisions, hiring, promotion, or
layoffs, college admissions and scholarship awards, and the
awarding of Government contracts.
Mr. Reagan. Mr. Chairman, in 1990, the Supreme Court handed
down Metro Broadcasting, and in that case, which was decided on
equal protection grounds, the Court by a 5-4 decision
determined that only a rational relationship test would be
applied when discussing immutable characteristics in
preferences such as race or gender.
Five years later, when there was a change in the Court, by
another 5-4 decision, this time the Adarand case was decided,
and at that point in time, the Court determined that under
equal protection grounds, a heightened level of scrutiny should
be used, in that case strict scrutiny. That's the current law
of the land, and if any remedy would be tailored under Adarand,
it would have to be narrowlytailored and subject to a strict
scrutiny type of review.
Senator Kyl. Thank you.
Mary Murguia.
Ms. Murguia. Mr. Chairman, I'm aware of the Adarand.
decision as it has been set forth by Mr. Reagan, and I would
follow the law, which is a strict scrutiny test in applying it.
Senator Kyl. Thank you.
Judge Bolton.
Judge Bolton. Mr. Chairman, I also am aware of the Adarand
decision, and I believe it's been accurately summarized my
colleagues and would follow and apply that strict scrutiny
test.
Senator Kyl. Jim Teilborg.
Mr. Teilborg. I, too, am aware of those decisions my
colleagues have spoken to, and I am committed to following
them.
Senator Kyl. Thank you very much. Those are all the
questions that I have submitted here, and because I have spoken
to at least three of the four of you independently and am well
aware of your views and the way in which I think you would
conduct yourself as a judge--and I am sure that Michael Reagan
falls into the same category--I don't think I need to ask any
other questions.
Let me just make a couple of other observations, if might,
and then call upon you to make any other observations that you
would like to.
I neglected to mention one thing in the resume of Jim
Teilborg, and I am able to do this because I have known Jim for
so long. But I think it illustrates the kind of quality of
candidates that we have before us here.
In looking at the resumes of each of these candidates, they
are filled not only with their legal accomplishments, and in
the case of Judge Bolton, her judicial accomplishments as well,
but also commitments to the community in one way or another,
service to others. It is always interesting to me that that is
a characteristic that almost all of the candidates who come
before us posses.
Now, one shouldn't be surprised at that, but I think this
is very important for judges, because people tend to think of
people on the bench as somewhat apart from the rest of us,
perhaps not quite like the rest of us, when, in fact, the
reason that most of them got there is because they are very
much like all of the rest of us. They care, they participate in
the community, and they make significant contributions. And
these contributions are frequently very varied.
In the case of Jim Teilborg, I happen to know because he
has done something for me, and I would love to tell you about
it briefly. One of the best things about being a Senator or a
Representative is being able to nominate people to the service
academies, and it is a very difficult job. You get hundreds of
applications. You have to interview everyone. You have to rank
them and send their names on.
Since the time I was elected to the House of
Representatives, Jim Teilborg has chaired my service academy
nominations committee with great distinction, and I think it is
one of the reasons that we have had so many fine candidates
from Arizona that have been selected to the service academies.
And I want to thank him publicly for that bit of public service
that he has performed for me, and I must tell you, it is one of
the reasons that I knew of his capability of performing some of
the tasks that he would have to perform as a Federal district
judge, and I thank him. And I thank all of you for the
contributions you have made apart from those that have been
described by your sponsors in terms of your legal background.
Now, the process from here will be that the Senate
Judiciary Committee will hold what we call an executive
meeting. It is where we do our business, where we pass bills
and amend them, and act on judicial and other nominations.
Right now, that meeting is scheduled at 10 o'clock Thursday. It
is subject to change, but hopefully we will be able to meet
then. And while it is possible that nominees can be put over
one week, since we go into a month-long recess immediately
after the end of this week, my hope is that we will be able to
take these nominations up on Thursday and pass them on to the
full Senate for consideration.
Now, that leaves precious little time for the full Senate
to act. Ordinarily, it takes us a day to clear our throat let
alone act on judicial nominees. But I will tell you that we
have done some ground work in advance, and I would hope that
there might be an opportunity to act before the end of the
week, but that obviously cannot be guaranteed.
In any event, I can assure you that I will do my very best,
and I think you heard, from what Senator Leahy said, that he
certainly will join me in trying to see that the full Senate
acts on your nominations as soon as possible.
Now, do any of you have any other comment that you would
like to make at this time?
[No response.]
I appreciate very much the thanks that you have expressed,
and I will pass those on to my colleagues. And we will, of
course, through the White House, communicate with you regarding
Thursday's meeting.
Let me again thank all of you in the audience who have come
to participate in this hearing. This is, I think, an occasion
worth celebrating because there are very few peoplethat have an
opportunity to serve their country in the capacity, life-long capacity,
of judge. It is a position of great honor but also of significant
responsibility because you literally have people's lives in your hands,
as you heard in response to one of the questions that I raised here. It
is an awesome responsibility. And for those of you who have had a hand
in helping to shape the careers of those who are here at the table, I
thank you on behalf of my colleagues for your contribution as well. We
are delighted to have you here to participate in this process.
If there are no other questions or comments, then I would
will adjourn this meeting, and we will hope to have some good
news for everyone in a few days.
[The biographical information of Judge Bolton follows:]
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[The biographical information of Ms. Murguia follows:]
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[The biographical information of Mr. Reagan follows:]
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[The biographical information of Mr. Teilborg follows:]
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Senator Kyl. Thank you all for being here.
[Whereupon, at 2:46 p.m., the committee was adjourned.]
Questions and Answers
----------
Response of Michael Joseph Reagan to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect even if you personally disagree with such precedents?
Answer 1. Yes, it is incumbent upon district court judges to follow
the precedent from the Supreme Court of the Untied States, as well as
applicable precedent from the circuit court of appeals in which they
sit. I would follow these precedents even if I personally disagreed
with them.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores \1\ where the Court struck down the Religious
Freedom Restoration Act.
---------------------------------------------------------------------------
\1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
Answer 2. Under the doctrine of stare decisis, I would follow the
precedent of the Supreme Court of the United States and the Court of
Appeals even if I believed they had seriously erred on the merits of
the relevant decisions. Because City of Boerne is now the law of the
land, I would follow it. Judicial activism occurs when a judge
disregards precedents, imposes his own judgments in lieu of those
precedents and therefore legislates from the bench.
Question 3. Please state in detail your best independent legal
judgment, irrespective of existing judicial precedent, on the
lawfulness, under the Equal Protection Clause of the 14th Amendment and
federal civil rights laws, of the use of race, gender or national
origin-based preferences in such areas as employment decisions (hiring,
promotion, or layoffs), college admissions, and scholarship awards and
the awarding of government contracts.
Answer 3. I would follow existing Supreme Court and Circuit Court
precedent on any question concerning the lawfulness, under the Equal
Protection Clause of the 14th Amendment and federal civil rights laws,
of the use of race or national origin-based preferences in such areas
as employment decisions (hiring, promotion, or layoffs), college
admissions, and scholarship awards and the awarding of government
contracts. As I understand it, that precedent calls for the strict
scrutiny standard. As to preferences based on gender, I would similarly
follow existing precedent, which calls for a heightened scrutiny
standard.
Question 4. Are you aware of the Supreme Court's decision in
Adarand v. Pena \2\ and the Court's earlier decision in Richmond v.
J.A. Croson Co.? \3\ If so, please explain to the Committee your
understandings of those decisions, and their holdings concerning the
use of race to distribute government benefits, or to make government
contracting or hiring decisions.
---------------------------------------------------------------------------
\2\ 515 U.S. 200 (1995).
\3\ 488 U.S. 469 (1989).
---------------------------------------------------------------------------
Answer 4. Richmond v. J.A. Croson Co. 488 U.S. 469 (1989), was a
precursor to the Adarand case. Croson settled the uncertainty that
persisted through the 1980s regarding the level of scrutiny to be
applied in cases of laws designed to aid racial minorities. The supreme
Court in Regents of the University of California v. Bakke, 438 U.S. 265
(1978), had been unable to agree upon the level of scrutiny to apply to
a state law which set aside a certain number of seats in the entering
class at Berkeley's medical school for minority students. Croson
clarified that uncertainty, holding that state laws giving minorities
preferential treatment to the detriment of whites would be reviewed
under ``strict scrutiny.''
Adarand v. Pena, decided in 1995, overruled Metro Broadcasting v.
FCC, 497 U.S. 547 (1990). Metro Broadcasting held that, when a racial
preference was given to a group by Congress (as opposed to the states),
the appropriate Equal Protection standard would be intermediate
scrutiny. Adarand overruled Metro Broadcasting by ruling that the
appropriate standard for Congressionally enacted affirmative action
programs would be ``strict scrutiny.'' After Adarand, affirmative
action programs can survive judicial review only if they are the least
restrictive means of serving a compelling governmental interest.
Question 5. Regardless of your personal feelings on these issues,
are you committed to following precedent of high courts on equal
protection issues?
Answer 5. Irrespective of my personal feelings, I would follow the
precedent of the Supreme Court of the United States and the Seventh
Circuit Court of Appeals regarding equal protection issues.
Question 6. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case thatmight come before you as a federal judge?
Answer 6. There is nothing in my background, education, training or
experience--nor do I harbor any personal belief--which would prevent me
from imposing or upholding a death sentence in any criminal case that
might come before me as a federal judge.
Question 7. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 7. A delay of 10 or 15, or even 20 years between conviction
of a capital offender and execution is too long. Delays are unfair to
the defendant, victims' families and society in general. The federal
courts should resolve capital cases fairly and expeditiously.
Question 8. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of these authorities is consistent with
the exercise of the Article III judicial power.
Answer 8. Federal judges should give constitutional provisions and
statutes their plain and ordinary meanings. If an ambiguity is
apparent, controlling United States Supreme Court and Circuit
precedents should be consulted for guidance as to appropriate
authorities for resolving the ambiguity.
Question 9. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and
original intent of the Framers of the Constitution; (2) discernment of
the ``community's interpretation'' of constitutional text, see William
J. Brennan, The Constitution of the United States: Contemporary
Ratification, Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 9. Although district courts should be extremely reticent to
establish a constitutional right not previously upheld by a court, the
interpretation of the plain meaning of the text and original intent of
the framers of the Constitution may be appropriate tools to use when
relevant Supreme Court precedent so dictates. The utilization of the
``community's interpretation'' of constitutional text as discussed by
justice Brennan should not be considered by a court. Judges must decide
cases based upon the doctrine of state decisions and must interpret
statutes according to their plain meaning and should not be influenced
by public opinion. An appropriate method for the establishment of a
constitutional right not previously upheld by a court would be through
the ratification of an amendment under Article V of the Constitution.
Question 10. How would you, if confirmed, analyze a challenge to
the constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 10. If confronted with a challenge to the constitutionality
of a statute in a case that was not one of first impression, I would
follow the precedent of the Supreme Court of the United States, or if
none existed, the circuit courts.
If confronted with a challenge to the constitutionality of a
statute in a case of first impression, I would bear in mind that there
is a presumption of constitutionality. Further, I would also consider
that, wherever possible, constitutional issues should be reached only
if no other grounds for resolving the case are available. I would
search for analogous United States Supreme Court precedent or analogous
circuit court precedent in the absence of direct United States Supreme
Court guidance.
Question 11. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of sources of law impact the scope of
the judicial power and the federal government's power under Article
III?
A. Griswold v. Connecticut, 381 U.S. 479 (1965).
Answer 11A. In Griswold v. Connecticut, 381 U.S. 479 (1965), the
Court held that the substantive due process component of the due
process clause of the Fourteenth Amendment protected the right of
married couples to obtain contraceptives and invalidated a Connecticut
law restricting access to birth control.
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 11B. In Alden v. Maine, 119 S. Ct. 2240 (1999), the Court
dismissed a lawsuit brought by state employees under the Fair Labor
Standards Act. In so doing, the Court construed the Eleventh Amendment
to bar lawsuits against states in state courts, even though the
amendment's text clearly refers only to ``[t]he judicial power of the
United States.'' The Alden court held that the plain text of the
amendment did not completely embody the ``sovereign immunity [that]
derives * * * from the structure of the original Constitution itself.''
Griswold and Alden are both examples of cases in which the Supreme
Court looked to purported sources of constitutional law beyond the
actual text of the Constitution.
Question 12. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress's
power and on the federal government's power compared with the power of
state governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
Answer 12A. In Wickard v. Filburn, 317 U.S. 111 (1942), Supreme
Court of the United States permitted legislation enacted pursuant to
the Commerce Clause to pass constitutional muster so long as, in the
aggregate, the activity substantially affected interstate commerce. In
Wickard, the Supreme Court upheld a federal law that prevented
individual farmers from growing more than a predetermined amount of
wheat because overproduction by individual farmers, in the aggregate,
could affect the interstate wheat market.
B. United States v. Lopez, 514 U.S. 549 (1995).
Answer 12B. Lopez involved the Federal Gun-Free School Zones Act,
which made it a crime to knowingly carry a firearm within a ``school
zone.'' The Court, in striking down this law, held that the activities
regulated by the statute did not by definition have an effect on
interstate commerce, and that the Act did not require a jurisdictional
nexus (e.g., that the firearm in issue crossed state lines).
Together, Wickard and Lopez define the boundaries of the Commerce
Clause.
Question 13. What does the division of power between the national
government and state governments play in our federal system? What
impact does this division have on the liberty of the individual and the
power of federal judges? Assess the impact of the following cases on
the division of power between the national and state governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
Answer 13A. United States v. Lopez, 514 U.S. 549 (1995),
illustrates the trend of the Supreme Court of United States in
interpreting the Constitution to enhance the autonomy and independence
of the states vis-a-vis Congress. By striking down the Federal Gun-Free
School Zones Act after concluding that the law did not have a
substantial effect on interstate commerce, the Court in Lopez
reaffirmed that there are limits on Article I ``commerce power.''
B. Printz v. United States, 521 U.S. 898 (1997).
Answer 13B. In Printz v. United States, 521 U.S. 898 (1997), the
Court reaffirmed that the Tenth Amendment is a real limitation on
Congressional power to enact legislation affecting the states. The
Printz Court reviewed the interim provisions of the Brady Handgun
Violence Prevention Act, which required state law enforcement officers
to perform background checks on prospective gun buyers and perform
other related duties. The Court held that Congress had no greater power
under the Tenth Amendment to require a state's executive officer to
carry out federal law than it did to mandate state legislatures to
enact legislation to effectuate federal law.
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 13C. In Alden v. Maine, 119 S. Ct. 2240 (1999), the Court
construed the Eleventh Amendment to bar lawsuits against states in
state court, even though the amendment's text clearly refers only to
``[t]he judicial power of the United States.''
Lopez, Printz, and Alden, represent three different limits on
Congress' power vis-a-vis the states.
D. Baker v. Carr, 369 U.S. 186 (1962).
Answer 13D. In Baker v. Carr, 369 U.S. (1962), the Court considered
the question whether malapportionment of legislative districts was
justiciable and concluded that it was, agreeing with the plaintiffs
that the case raised a Fourteenth Amendment equal protection issue. The
Court held that state actions that impinge on federal constitutional
rights are issues that may be reviewed by the federal courts.
E. Shaw v. Reno 509 U.S. 630 (1993).
Answer 13E. In Shaw v. Reno, 590 U.S. 630 (1993), the Court held
that an allegation that North Carolina's redistricting legislation was
an effort to segregate races for voting purposes, without regard for
traditional districting principles and without sufficiently compelling
justification, was a justiciable issue under the Equal Protection
Clause.
Together, Baker and Shaw stand for the proposition that claims of
discrimination protected by the federal Constitution and aimed at
securing individual rights apply to state actions.
__________
Responses of Mary H. Murguia to Questions From Senator Grassley
Question 1. What role did you play in the decision of the United
States Attorney's office in Arizona not to authorize an application for
a search warrant for James Moore? Who was targeted during Operation
Special Delivery?
Answer 1. I was the Deputy Chief of the Criminal Division of the
United States Attorney's Office for the District of Arizona during this
time period. I supervised the Violent Crime Section which prosecuted,
among other things, sexual crimes against children, including child
pornography. As such, I supervised the Assistant U.S. Attorney (AUSA)
assigned to the Moore case. When an AUSA whom I supervised had a
question regarding the validity of a search warrant or any legal
concerns, it was my job to review the search warrant and provide my
guidance and opinion.
``Operation Special Delivery'' was designed to target for
prosecution those who possessed, produced and trafficked in child
pornography. In the Moore case, along with the line AUSA and the
Criminal Chief, I provided my judgment to the United States Attorney
that, in my view (and in view of the line AUSA and Criminal Chief) the
proposed warrant as then developed provided at best a questionable
basis for a successful child pornography prosecution of Mr. Moore--and
that it would be best, i.e., more likely to result in a sustainable
conviction, if the Postal Inspector could obtain additional evidence.
When the Postal Inspector refused to do so and demanded a declination
in writing. I signed and approved the requested letter.
Question 2. Did you ever, at any time, in discussions with Postal
Inspection Agent Karyn Cassatt make reference to James Moore's sexual
orientation or the sexual orientation of those targeted by government
in Operation Special Delivery?
Answer 2. Yes, I did make reference to Mr. Moore's sexual
orientation and the sexual orientation of those targeted by the
government in Operation Special Delivery in discussions with Postal
Inspector Karyn Cassatt. I did so in the context of a conversation in
which we discussed the sufficiency of the evidence that had been
provided to the United States Attorney's Office by the Postal Inspector
in an effort to obtain approval for a search warrant. One of the pieces
of information that the Postal Inspector provided us was Mr. Moore's
sexual orientation. However, it was my view, and the view of the United
States Attorney's Office for the District of Arizona, that the Postal
Inspector had not provided sufficient evidence to establish that Mr.
Moore had a predilection for child pornography and, thus, at that time,
the Postal Inspector had not provided sufficient evidence to support a
warrant that would lead to a successful conviction. Accordingly, it was
my judgment, and the judgment of the United States Attorney's Office
for the District of Arizona, that the information provided to us by the
Postal Inspector was not yet sufficient under the controlling legal
precedent to withstand legal challenge and result in a successful
prosecution.
Although I may have stated it inartfully at times, the reference to
Mr. Moore's sexual orientation was intended to address the sufficiency
of the evidence presented by the Postal Inspector and not to suggest
that such orientation should be used as a criterion either for or
against prosecution. To the contrary, I firmly believe that those who
exploit or abuse children should be vigorously prosecuted regardless of
their sexual orientation.
Question 3. What role did you play in the decision of the United
States Attorney's office in Arizona not to permit prosecutors from the
Child Exploitation and Obscenity Section to seek an application for a
search warrant or to otherwise direct the investigation and prosecution
of James Moore, who was targeted during Operation Special Delivery?
Answer 3. As Deputy Chief of the Criminal Section, I participated
in formulating the position of the United States Attorney's Office that
the Child Exploitation and Obscenity Section (CEOS) of the Department
of Justice's Criminal Division should neither assume responsibility for
the investigation nor seek a search warrant based on the information
provided by the Postal Inspector as of the time the warrant was sought.
For the reasons stated above, we believed that the case should have
been developed further prior to seeking a search warrant. At the time,
I understood that any disagreement between the U.S. Attorney's Office
and the CEOS would be resolved by higher ranking officials within the
Department. As it developed, the matter was taken to state authorities
by the Postal Inspector before the matter was resolved within the
Department.
Question 4. Did United States Attorney Janet Napolitano, or any
person employed by Ms. Napolitano, make reference to James Moore's
sexual orientation or the sexual orientation of those targeted by
government in Operation Special Delivery at any time during the
consideration of the Postal Inspection Service's request that the
United States Attorney's office to seek a search warrant for James
Moore?
Answer 4. As discussed above, I did refer to Mr. Moore's sexual
orientation and the sexual orientation of those targeted by the
government in Operation Special Delivery in discussions about the Moore
search warrant. Although I do not specifically recall any particular
reference by United States Attorney Napolitano or any other employee of
the United States Attorney's Office to Mr. Moore's sexual orientation
or the sexual orientation of those targeted by the government in
Operation Special Delivery, I believe that such references must have
occurred during the course of the investigation. As I have described in
my answer to Question 2 above, my reference was in the context of a
conversation in which we articulated our view that the Postal Inspector
had not provided sufficient evidence to establish that Mr. Moore had a
predilection for child pornography and, thus, at that time, the Postal
Inspector had not provided sufficient evidence to support a warrant
that would lead to a successful conviction. In addition, I am confident
that in any reference by the United States Attorney or any other
employee of the United States Attorney's Office for the District of
Arizona to Mr. Moore's sexual orientation or the sexual orientation of
those targeted by the government in Operation Special Delivery, the
principal focus was always to obtain sufficient evidence to obtain
sustainable convictions under the child pornography statutes.
My record as both a state and federal prosecutor conclusively
demonstrates that I have aggressively prosecuted persons committing
crimes against children without regard to their sexual orientation.
____
Responses of Mary H. Murguia to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect, even if you personally disagree with such precedents?
Answer 1. Yes. I understand I am bound by the precedent set forth
by the Supreme Court and the Court of Appeals. My personal views would
not interfere or influence my ability to follow the law. If I am
fortunate enough to be confirmed, I will faithfully give the
Constitution and decisions of the Supreme Court of the United States
and the Court of Appeals for the Ninth Circuit full force and effect.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores \1\ where the Court struck down the Religious
Freedom Restoration Act.
---------------------------------------------------------------------------
\1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
Answer 2. As a federal district court judge, it would be my job to
apply the relevant legal precedent whether or not I personally agreed
with it. In City of Boerne v. Flores, the Supreme Court declared the
Religious Freedom Restoration Act unconstitutional and beyond Congress'
authority to enact under section 5 of the Fourteenth Amendment. I would
follow this binding precedent as I would any other precedent.
Question 3. Please state in detail your best independent legal
judgment, irrespective of existing judicial precedent, on the
lawfulness, under the Equal Protection Clause of the 14th Amendment and
federal civil rights laws, of the use of race, gender or national
origin-based preferences in such areas employment decisions (hiring,
promotion, or layoffs), college admissions, and scholarship awards and
the awarding of governmental contracts.
Answer 3. If I were fortunate to be confirmed as a federal district
court judge, I would follow the relevant Equal Protection Clause
precedent that governs the constitutionality of affirmative action
programs. Adarand Constructors v. Pena, 515 U.S. 200 (1995), holds that
racial preferences are to be subject to ``strict scrutiny.'' Gender
preferences, by contrast, are to be evaluated under ``intermediate
scrutiny'' under United States v. Virginia. My independent legal
judgment would not factor in to any decision I would make regarding the
application of this standard.
Question 4. Are you aware of the Supreme Court's decision in
Adarand v. Pena \2\ and the Court's earlier decision in Richmond v.
J.A. Croson Co.\3\ If so, please explain to the Committee your
understandings of those decisions, and their holdings concerning the
use of race to distribute government benefits, or to make government
contracting or hiring decisions.
---------------------------------------------------------------------------
\2\ 515 U.S. 200 (1995).
\3\ 488 U.S. 469 (1989).
---------------------------------------------------------------------------
Answer 4. Yes. Both decisions hold that racial classifications
warrant heightened scrutiny under the Equal Protection Clause. In
Croson, the Court held that state affirmative action programs must
satisfy ``strict scrutiny'' under the Equal Protection Clause, and
would generally be upheld only if necessary to remedy past
discrimination by the State agency at issue. Adarand, as noted above,
held that strict scrutiny also applies to Congressionally enacted
affirmative action programs.
Question 5. Regardless of your personal feelings on these issues,
are you committed to following precedent of higher courts on equal
protection issues?
Answer 5. Yes. I am committed to following the precedent of the
higher courts on equal protection issues.
Question 6. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 6. No. The Supreme Court has made it clear that the death
penalty is constitutional. Nothing regarding my views would prevent me
from following the law.
Question 7. Do you believe that 10-, 15-, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congressor a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 7. Yes, delays of 10, 15, or 20 years are too long. Federal
courts should endeavor to resolve all cases fairly and expeditiously,
and capital cases should be no exception.
Question 8. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of these authorities is consistent with
the exercise of the Article III judicial power.
Answer 8. Federal judges are bound by the plain language of the
Constitution or the statutory provision at issue, controlling precedent
of the Supreme Court of the United States and any superior federal
courts. Federal statues are presumed to be constitutional. A federal
judge may also look to the plain meaning of the statute and when
appropriate seek guidance from the legislative history.
Question 9. Please assess the legitimacy of the following three
approaches to upholding a claim based on a constitutional right not
previously upheld by a court: (1) interpretation of the plain meaning
of the text and original intent of the Framers of the Constitution: (2)
discernment of the ``community's interpretation'' of constitutional
text, see William J. Brennan, The Constitution of the United States:
Contemporary Ratification, Text and Teaching Symposium, Georgetown
University (October 12, 1985); and (3) ratification of an amendment
under Article V of the Constitution. Assess the impact of each approach
on the judicial power provided by Article III of the Constitution.
Answer 9. As a district court judge, I would adhere to the plain
meaning of the text of the Constitution and, where that does not
resolve a question and Supreme Court precedent dictates, I would look
to the Framer's intent and to other sources. The second approach,
looking to the ``community's interpretation'' of constitutional text,
has never been adopted by the Supreme Court. The third approach is the
proper method of amending the Constitution.
Question 10. How would you, if confirmed, analyze a challenge to
the constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 10. When confronted with a case that is not of first
impression, I would look to the controlling legal precedent. In a case
of first impression, which is rare, I would bear in mind the
presumption that legislation is constitutionally valid. My subsequent
analysis would look to any existing analogous precedent, and would
begin--and frequently end--with the plain language of the statute and
the jurisprudence governing the relevant constitutional provision. I
would, of course, construe a statue in a constitutional manner if at
all possible.
Question 11. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of sources of law impact the scope of
the judicial power and the federal government's power under Article
III?
A. Griswold v. Connecticut, 381 U.S. 479 (1965).
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 11. In Griswold, the Court held that a Connecticut law
barring the use of contraceptives by married couples violated the
substantive component of the Due Process Clause, In Alden, the Court
dismissed a lawsuit brought by state employees against Maine in state
court under the Fair Labor Standards Act, reasoning that the state
sovereign immunity embodied by the Eleventh Amendment prohibited
Congress from subjecting States to lawsuits without their consent. In
both of these cases, the Supreme Court looked to sources other than the
plain text of the Constitution in rendering its decision.
Question 12. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
asses their impact on the judicial power compared with Congress's power
and on the federal government power compared with the power of state
governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
B. United States v. Lopez, 514, U.S. 549 (1995).
Answer 12. In Wickard, the Supreme Court held that the Congress
could regulate the wheat production of individual farmers under the
Commerce Clause because individual production, in the aggregate, had a
``substantial effect'' on interstate commerce. Lopez reaffirmed limits
on the Commerce Clause by striking down the Gun-Free School Zones Act
on the grounds that the wholly intrastate possession of guns did not,
without more, substantially affect interstate commerce. Together, these
cases reflect the Supreme Court's assessment of Congress' power to
regulate commerce vis-a-vis the States.
Question 13. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
B. Printz v. United States, 521 U.S. 898 (1997).
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
D. Baker v. Carr, 369 U.S. 186 (1962).
E. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 13. In Lopez, as noted above, the Supreme Court concluded
that the Gun-Free School Zones Act violated the Commerce Clause because
the activity it regulated--possession of a firearm within a school
zone--did not ``substantially affect'' interstate commerce. In Printz,
the Court held that the interim provisions of the Brady Handgun Act
violated the Tenth Amendment by forcing state law enforcement officials
to perform background checks on prospective gun buyers. In Alden, the
Court held that Congress could not, consistent with the Eleventh
Amendment, subject States to lawsuits in state courts against their
will. All three of these cases reflect the Supreme Court's view of the
limits of Congressional power.
In Baker, the Court held that a lawsuit alleging that state
reapportionment of voting districts violated the Equal Protection
Clause did not constitute a ``political question,'' and would therefore
be entertained by the federal courts. In Shaw, the Court held that an
equal protection challenge to another state's reapportionment could be
brought in federal court. Both of these cases reflect the Supreme
Court's view of the supremacy of federal constitutional law against
state action in lawsuits involving the protection of individual rights.
__________
Response of Susan Ritchie Bolton to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect even if you personally disagree with such precedents?
Answer 1. I am committed to faithfully following the precedents of
higher courts and giving them full force and effect. Any personal views
I may hold will not affect my ability to follow precedent.
Question 2. How would you rule if you believed the Supreme Court or
the Court of Appeals had seriously erred in rendering a decision? Would
you nevertheless apply that decision or your own best judgment of the
merits? Take for example, the Supreme Court's recent decision in the
City of Boerne v. Flores \1\ where the Court struck down the Religious
Freedom Restoration Act.
---------------------------------------------------------------------------
\1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
Answer 2. I would apply the decision of the Supreme Court of the
United States or the Court of Appeals whether I agreed with it or not.
I would not apply my own judgment and ignore precedent.
Question 3. Please state in detail your best independent legal
judgment, irrespective of existing judicial precedent, on the
lawfulness, under the Equal Protection Clause of the 14th Amendment and
federal civil rights laws, of the use of race, gender or national
origin-based preferences in such areas as employment decisions (hiring,
promotion, or layoffs), college admissions, and scholarship awards and
the awarding of government contracts.
Answer 3. As established by the United States Supreme Court in
Adarand v. Pena, any race or national origin-based preferences must be
subjected to a strict scrutiny analysis; that is, the preference must
serve a compelling state interest and the preference must be narrowly
tailored to advance that compelling interest. If confirmed as a
district judge, I would follow this precedent.
While Adarand does not address this issue in the context of gender,
the Supreme Court has made clear in the Virginia Military Institute
case and others that at least a heightened scrutiny is the appropriate
standard. I would also follow this precedent.
Question 4. Are you aware of the Supreme Court's decision in
Adarand v. Pena \2\ and the Court's earlier decision in Richmond v.
J.A. Croson Co.\3\? If so, please explain to the Committee your
understandings of those decisions, and their holdings concerning the
use of race to distribute government benefits, or to make government
contracting or hiring decisions.
---------------------------------------------------------------------------
\2\ 515 U.S. 200 (1995).
\3\ 488 U.S. 469 (1989).
---------------------------------------------------------------------------
Answer 4. Both Adarand v. Pena and Richmond v. J.A. Croson Co.
require the application of a strict scrutiny analysis whether the law
is designed to benefit historically disadvantaged minority groups or
provide a preference in business to minorities. This strict scrutiny
standard is applicable to federal, state and local government benefits
and preferences. I would follow these precedents.
Question 5. Regardless of your personal feelings on these issues,
are you committed to following precedent of high courts on equal
protection issues?
Answer 5. Regardless of personal views, I am committed to following
precedents of higher courts.
Question 6. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 6. I do not have any legal or moral views which would
inhibit or prevent me from imposing or upholding a death sentence.
Question 7. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 7. Delays of a decade or more between conviction and final
resolution of death penalty appeals are too long. Sufficient resources
of courts, prosecuting agencies and defense counsel must be focused on
resolving these cases fairly and expeditiously.
Question 8. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of these authorities is consistent with
the exercise of the Article III judicial power.
Answer 8. Article III judicial power requires federal judges to
follow precedent in determining the legal effect of a statute or
constitutional provision. Statutes must be presumed to be
constitutional and interpreted to be constitutional whenever possible.
Statutes should also be interpreted to give effect to the plain meaning
of the statute and the intent of the legislature.
Question 9. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and
original intent of the Framers of the Constitution; (2) discernment of
the ``community's interpretation'' of constitutional text, see William
J. Brennan. The Constitution of the United States: Contemporary
Ratification Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 9. Federal district court judges should only uphold
constitutional rights previously upheld by a higher court and not
create new rights. The district court is bound by the plain meaning of
the text of the Constitution, any amendments thereto and the
interpretation of the United States Supreme Court and the Court of
Appeals. The first approach is consistent with Supreme Court precedent.
The second approach has never been accepted by the Supreme Court. The
third approach is the one established in the Constitution.
Question 10. How would you, if confirmed, analyze a challenge to
the constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 10. If the case is not one of first impression, prior
precedent would govern any question of the constitutionality of the
statute. In the unusual circumstance of a case of first impression, my
analysis would begin with the presumption of constitutionality of the
statute. If at all possible, the case should be decided on grounds of
statutory interpretation or analysis of prior precedent, rather than on
constitutional grounds. If it is necessary to decide a statute's
constitutionality, I would rule the statute constitutional whenever
possible. Only if it were plain and unavoidable that the statute was
unconstitutional would I so rule. In addition, any ruling of
unconstitutionality should be stated as narrowly as possible.
Question 11. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of sources of law impact the scope of
the judicial power and the federal government's power under Article
III?
A. Griswold v. Connecticut, 381 U.S. 479 (1955).
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 11. In Griswold v. Connecticut, the Supreme Court held that
the substantivecomponent of the Due Process Clause secured a right of
married couples to obtain contraceptives. In Alden v. Maine, the
Supreme Court held that a state's sovereign immunity guaranteed by the
Eleventh Amendment prohibited a lawsuit brought by state employees
against the state in state court for alleged violations of the Fair
Labor Standards Act. The use of substantive due process and sovereign
immunity by the Supreme Court demonstrates the Supreme Court's views on
the limits imposed by the Constitution on state governments' powers
over individuals and on the federal government's power over the states.
Question 12. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress's
power and on the federal government's power compared with the power of
state governments.
A. Wickard v. Filburn, 317 U.S. 111(1942).
B. United States v. Lopez, 514 U.S. 549 (1995).
Answer 12. Wickard v. Filburn upheld a federal law limiting farmers
from growing more than a predetermined amount of wheat because of the
cumulative effect overproduction could have on interstate commerce.
United States v. Lopez struck down a federal law which made it a crime
to knowingly carry a firearm in a school zone because the law did not
affect interstate commerce. These cases illustrate the breadth and
limitation of the federal government's power to enact legislation and
the power reserved to the states to legislate intrastate matters. These
cases are another illustration of the limits on federal power over the
states contained in the Constitution.
Question 13. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
B. Printz v. United States, 521 U.S. 898 (1997).
C. Alden v. Maine, 119 S. Ct. 2240 (1999).
D. Baker v. Carr, 369 U.S. 186 (1962).
E. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 13. Our Constitution reserves to the states all powers not
specifically granted to the federal government in the Constitution.
Regulation of local matters is for the states and to be constitutional
federal enactments must serve a national interest. In United States v.
Lopez, the Supreme Court reaffirmed the reach of the Commerce Clause in
holding that a law making it a crime to carry a gun in a school zone is
a local matter reserved to the states because it has no substantial
impact on interstate commerce. In Printz v. United States, the Supreme
Court also limited the power of the federal government to enact
legislation that imposed obligations on state officers to execute
federal laws by declaring unconstitutional that part of the Brady Act
that imposed on state law enforcement officers the obligation to
conduct background checks under this federal law. Alden v. Maine is a
reaffirmation of the sovereign immunity of the states.
In contrast to these cases illustrating the limitations on federal
power, Baker v. Carr and Shaw v. Reno are cases in which the Supreme
Court upheld the power of the federal courts to protect individual
rights guaranteed by the Constitution. In Baker v. Carr, a state
statute that established an apportionment of legislative representation
that deprived plaintiffs of equal protection in violation of the
Fourteenth Amendment was found by the Supreme Court to present a
justiciable question over which the federal courts had jurisdiction.
Similarly, in Shaw v. Reno, the allegation that redistricting
legislation was so irregular that it could only be rationally viewed as
an effort to segregate races for voting purposes was held to state a
claim under the equal protection clause of the Fourteenth Amendment.
__________
Responses of James A. Teilborg to Questions From Senator Sessions
Question 1. Supreme Court precedents are binding on all lower
federal courts and Circuit Court precedents are binding on the district
courts within the particular circuit. Are you committed to following
the precedents of higher courts faithfully and giving them full force
and effect even if you personally disagree with such precedents?
Answer 1. I am committed to following all Supreme Court and Circuit
Court precedents.
Question 2. How would you rule if you believed the Supreme Court of
Appeals had seriously erred in rendering a decision? Would you
nevertheless apply that decision or your own best judgment of the
merits? Take, for example, the Supreme Court's recent decision in the
City of Boerne v. Flores \1\ where the Court struck down the Religious
Freedom Restoration Act.
---------------------------------------------------------------------------
\1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
Answer 2. Even if I disagreed with a decision of a higher court, I
would apply that decision to the best of my ability.
Question 3. Please state in detail your best independent legal
judgment, irrespective of existing judicial precedent, on the
lawfulness, under the Equal Protection Clause of the 14th Amendment and
federal civil rights laws, of the use of race, gender or national
origin-based preferences in such areas as employment decisions (hiring,
promotion, or layoffs), college admissions, and scholarship awards and
the awarding of government contracts.
Answer 3. In Adarand v. Pena, the Supreme Court made it clear that
any law using race or national origin-based preferences is subject to a
strict scrutiny standard requiring a showing of a compelling government
interest and narrowly tailored remedy. I would follow this precedent if
I am fortunate enough to be confirmed as a district judge. Adarand does
not address this issue in the context of gender. However, in other
cases, the Supreme Court has made it clear that at least a heightened
scrutiny is the appropriate standard. I would also follow this
precedent.
Question 4. Are you aware of the Supreme Court's decision in
Adarand v. Pena \2\ and the Court's earlier decision in Richmond v.
J.A. Croson Co.? \3\ If so, please explain to the Committee your
understandings of those decisions, and their holdings concerning the
use of race to distribute government benefits, or to make government
contracting or hiring decisions.
---------------------------------------------------------------------------
\2\ 515 U.S. 200 (1995).
\3\ 488 U.S. 469 (1989).
---------------------------------------------------------------------------
Answwer 4. I am aware of these decisions and their requirements of
the strict scrutiny test called for by Croson with regard to state and
local enactments and Adarand with regard to federal enactments. I would
follow these precedents if I am fortunate enough to be confirmed as a
district judge.
Question 5. Regardless of your personal feelings on these issues,
are you committed to following precedent of high courts on Equal
Protection issues?
Answer 5. Nothing about my personal feelings will prevent me from,
and I am committee to following, precedent on Equal Protection issues.
Question 6. Do you have any legal or moral beliefs which would
inhibit or prevent you from imposing or upholding a death sentence in
any criminal case that might come before you as a federal judge?
Answer 6. I have no legal or moral beliefs which would prevent me
from imposing or upholding a death sentence in any appropriate case.
Question 7. Do you believe that 10, 15, or even 20-year delays
between conviction of a capital offender and execution is too long? Do
you believe that once Congress or a state legislature has made the
policy decision that capital punishment is appropriate that the federal
courts should focus their resources on resolving capital cases fairly
and expeditiously?
Answer 7. I believe delays of this magnitude should be a concern to
all branches of government and those involved in the criminal justice
system. If I am fortunate enough to be confirmed as a district judge, I
am committed to resolving capital cases fairly and expeditiously within
the confines of the district courts jurisdiction.
Question 8. What authorities may a federal judge legitimately use
in determining the legal effect of a statute or constitutional
provision? Discuss how the use of these authorities is consistent with
the exercise of the Article III judicial power.
Answer 8. In determining the legal effect of a statute or
constitutional provision, a district judge should always follow
relevant precedent from the circuit and Supreme Court. In any statutory
challenge, the court should start with the plain language of the
enactment and presume it to be constitutional. The court should also
attempt resolution of the case without reaching a constitutional
question if possible. It should look to legislative intent carefully,
giving more weight to formal committee reports than comments by
individual members. This restrained approach is consistent with
thelimited jurisdiction and scope of the district court.
Question 9. Please assess the legitimacy of the following three
approaches to establishing a constitutional right not previously upheld
by a court: (1) interpretation of the plain meaning of the text and
original intent of the Framers of the Constitution; (2) discernment of
the ``community's interpretation'' of constitutional text, see William
J. Brennan, The Constitution of the United States: Contemporary
Ratification, Text and Teaching Symposium, Georgetown University
(October 12, 1985); and (3) ratification of an amendment under Article
V of the Constitution. Assess the impact of each approach on the
judicial power established by Article III of the Constitution.
Answer 9. The first approach has been accepted by the Supreme
Court. It is the legitimate role and should be the function of an
Article III court to first seek to determine the plain meaning of the
text of the Constitution. If the court has determined a constitutional
issue is presented and there is no controlling precedent, it should
seek to determine the original intent of the framers of the
Constitution. This approach is manifestly at odds with the second
listed approach, a so-called ``community interpretation'' approach. As
for the third approach, ratification of an amendment is the
constitutionally provided method for establishing a new right if one is
to be established.
Question 10. How would you, if confirmed, analyze a challenge to
the constitutionality of a statute in a case that was not one of first
impression? In a case of first impression?
Answer 10. In either case, I would first determine that it is
indeed a case requiring a constitutional decision. If not a case of
first impression, I would look to precedent in the U.S. Supreme Court
and the Ninth Circuit and follow that precedent. If it is truly a case
of first impression, I would begin by presuming the statute to be
constitutional and seek a construction that is constitutional. I would
seek to resolve the case by looking to the plain language of the
statute and the plain language of the Constitution. I would also look
at analogous cases and analogous areas of law.
Question 11. In your view, what are the sources of law and methods
of interpretation used in reaching the Court's judgment in the
following cases? How does the use of sources of law impact the scope of
the judicial power and the federal government's power under Article
III?
A. Griswold v. Connecticut, 381 U.S. 479 (1965).
Answer 11A. In Griswold, the Court found a penumbra of rights in
the Constitution though not so stated, and found a right of privacy
which was violated by Connecticut Statute forbidding use of
contraceptives. The Court also relied on the Ninth Amendment providing
that the enumeration of certain rights shall not deny others retained
by the people.
B. Alden v. Maine, 119 S. Ct. 2240 (1999).
Answer 11B. Alden dismissed a suit brought by state employees under
the federal Fair Labor Standards Act holding that sovereign immunity
derives from the structure of the original Constitution, not the plain
language of the Eleventh Amendment.
Commentators have noted that, in both cases, the Court based its
ruling not solely on the express text of the Constitution. If I am
confirmed as a district judge, I would follow these precedents to the
extent they remain good law.
Question 12. Compare the following cases with respect to their
fidelity to the text and original intent of the Constitution. Also
assess their impact on the judicial power compared with Congress's
power and on the federal government's power compared with the power of
state governments.
A. Wickard v. Filburn, 317 U.S. 111 (1942).
Answer 12A. In Wickard, the Court upheld a federal law limiting the
amount of wheat a farmer could grow, holding that the right of Congress
to regulate commerce includes regulations having an indirect effect by
virtue of regulating a local activity. This decision obviously affirmed
the power of Congress in the area of economic regulation.
B. United States v. Lopez, 514 U.S. 549 (1995).
Answer 12B. In Lopez, the Court limited Congress's power by holding
unconstitutional a law establishing gun-free zones around schools, as
not having a sufficient effect on interstate commerce. The Court found
that the act did not deal with economic activity, just criminal
activity, limiting the reach of the interstate commerce clause.
Question 13. What role does the division of power between the
national government and state governments play in our federal system?
What impact does this division have on the liberty of the individual
and the power of federal judges? Assess the impact of the following
cases on the division of power between the national and state
governments.
A. United States v. Lopez, 514 U.S. 549 (1995).
Answer 13A. As discussed above, Lopez struck down the Gun-Free
School Zones Act. The Court made clear that a law based on the commerce
clause can notbe sustained solely on such an indirect connection to
interstate commerce as the costs of crime. The Court reaffirmed a limit
on the reach of the commerce clause.
B. Printz v. United States, 521 U.S. 898 (1997).
Answer 13B. Printz dealt with interim provisions of the Brady
Handgun Violence Prevention Act which required local government
officials to do background checks. The Court found the law violates the
Constitution by conscripting local government officials to carry out
provisions of a federal law.
C. Alder v. Maine, 119 S. Ct. 2240 (1999).
Answer 13C. Alden, as discussed earlier, involved a suit by state
employees under the FLSA. The Court held that the Eleventh Amendment
prohibits Congress from subjecting non-consenting states to lawsuits,
unless the law is enacted pursuant to Section 5 of the Fourteenth
Amendment.
These three cases are examples in which the Supreme Court
articulated the limitations of federal power.
D. Baker v. Carr, 369 U.S. 186 (1962).
Answer 13D. Baker was a voting apportionment case involving state
voters. The Court held that reviewing the state appointment actions was
not a political question and could therefore be entertained by federal
courts.
E. Shaw v. Reno, 509 U.S. 630 (1993).
Answer 13E. In Shaw, the Court held that it was possible to bring
an Equal Protection challenge to a particular voting apportionment
scheme.
These cases are examples in which the Supreme Court recognized the
power of the federal courts to entertain constitutional challenges,
including those involving the protection of individual rights.
______
Responses of James A. Teilborg to Questions From Senator Leahy
Question 1. In 1980, in a case called Stone v. Graham, the Supreme
Court held that posting the Ten Commandments in public schools violates
the Establishment Clause. Do you agree with that decision? How would
you have analyzed it as a case of first impression? Would you follow it
if a similar case came before you?
Answer 1. Last year, the U.S. House of Representatives passed a
bill that purported to allow the Ten Commandments to be displayed on
any property owned or administered by a State. How would you analyze
the constitutionality of such a law?
I will follow the precedent of Stone if I am fortunate enough to be
confirmed as a district court judge. Had it come before me as a case of
first impression I would have utilized the three-part test of Lemon v.
Kurtzman, 403 US 602 (1971) that controlled in 1980, and would have
determined whether the law has a secular legislative purpose, whether
it neither advances nor inhibits religion, and whether it fosters an
excessive government entanglement with religion.
If I were presented with a constitutional challenge to any bill
purporting to allow the Ten Commandments to be displayed on state
property, I would look to prevailing Supreme Court precedent including
Stone and more recent Establishment Clause precedents such as Agostini
v. Felton and Mitchell v. Helms. I can assure you that I would follow
prevailing Supreme Court precedent with respect to this or any other
issue.
Question 2. In the 1992 case, Lee v. Weissman, the Supreme Court
held that the Establishment Clause prohibits members of the clergy from
offering prayers as part of an official public school graduation
ceremony. This year, the Court held that the Establishment Clause
prohibits a public school from allowing students to deliver prayers
over the public address system at home football games. Do you agree
with these decisions? How would you have analyzed each as a matter of
first impression? Would you follow them?
Answer 2. As a district court judge, if I am fortunate enough to be
confirmed, my oath would compel me to follow and I would apply Lee v.
Weissman and Sante Fe Independent School District v. Doe, both of which
are binding precedent. Were these cases before me today as cases of
first impression I would look to relevant First Amendment Establishment
Clauses precedents, and allow them.
Question 3. Justice Scalia and Justice Thomas have taken the
position that the government may give tax dollars to religious schools
to further a secular purpose, so long as it also gives aid to
nonreligious schools on the same terms. In other words, these Justices
believe that government aid to religious schools is permissible as long
as it is offered on a neutral basis, and the aid is secular in content.
Do you think the Establishment Clause allows tax dollars to be spent on
religious schools in this way?
As a sitting district court judge, I would look to the relevant
precedent of the Supreme Court and not the individual opinions of
individual justices. As you alluded to in your question, the plurality
opinion of Mitchell v. Helms held that an aid program offering secular
aid on a neutral basis to religious and nonreligious schools was likely
to be constitutional because of its neutrality. I would follow the
holding of the majority of the court (not the opinions of dissenting
judges) when applying this precedent to future cases.
In this and all matters I can assure the Committee that if I am
confirmed as a district judge I will follow all relevant Supreme Court
and Ninth Circuit decisions.