[Senate Hearing 106-399] [From the U.S. Government Publishing Office]S. Hrg. 106-399 Pt. 2 CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED SIXTH CONGRESS SECOND SESSION on CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY __________ FEBRUARY 22, MARCH 23, APRIL 27, AND MAY 10, 2000 __________ Part 2 __________ Serial No. J-106-33 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 73-031 CC WASHINGTON : 2001 For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001 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 (ii) C O N T E N T S ---------- TUESDAY, FEBRUARY 22, 2000 Statements of Committee Members Page Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........ 1 Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont, with prepared statement........................................ 3 Torricelli, Hon. Robert, U.S. Senator from the State of New Jersey......................................................... 99 Introduction of Nominees Randolph D. Moss................................................. 11 Julio M. Fuentes................................................. 100 James D. Whittemore.............................................. 101 Presenters Graham, Hon. Bob, U.S. Senator from the State of Florida......... 6 Lautenberg, Frank R., U.S. Senator from the State of New Jersey.. 9 Mack, Hon. Connie, U.S. Senator from the State of Florida........ 1 Testimony of Nominees Statement of Randolph D. Moss, of Maryland, to be Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice........................................................ 11 Biographical Information..................................... 18 Questioning by: Senator Hatch............................................ 12 Senator Torricelli....................................... 15 Senator Smith............................................ 181 Senator Grassley......................................... 182 Statement of Julio M. Fuentes, of New Jersey, to be U.S. Circuit Judge for the Third Circuit.................................... 100 Biographical Information..................................... 107 Senator Hatch............................................ 101 Senator Specter.......................................... 102 Senator Smith............................................ 183 Statement of James D. Whittemore, of Florida, to be U.S. District Judge for the Middle District of Florida....................... 101 Biographical Information..................................... 147 Senator Hatch............................................ 102 Senator Smith............................................ 184 THURSDAY, MARCH 23, 2000 Statements of Committee Members Thurmond, Hon. Strom G., U.S. Senator from the State of South Carolina....................................................... 187 Abraham, Hon. Spencer, U.S. Senator from the State of Michigan... 192 Introduction of Nominees Richard Tallman.................................................. 199 John Antoon, II.................................................. 251 Marianne O. Battani.............................................. 286 David M. Lawson.................................................. 326 Presenters Gorton, Hon. Slade, U.S. Senator from the State of Washington.... 189 Graham, Hon. Bob, U.S. Senator form the State of Florida......... 194 Prepared statement........................................... 196 Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont, (prepared statement)........................................... 187 Levin, Hon. Carl, U.S. Senator from the State of Michigan........ 191 Mack, Hon. Connie, U.S. Senator from the State of Florida........ 195 Murray, Hon. Patty, U.S. Senator from the State of Washington.... 190 Testimony of Nominees Statement of Richard Tallman, of Washington, to be U.S. Circuit Judge for the Ninth Circuit.................................... 199 Biographical information and questionnaire................... 200 Questioning by: Senator Thurmond......................................... 364 Senator Smith............................................ 369 Statement of John Antoon, II, of Florida, to be U.S. District Judge for the Middle District of Florida....................... 251 Biographical information and questionnaire................... 252 Questioning by: Senator Smith............................................ 371 Statement of Marianne O. Battani, of Michigan, to be U.S. District Judge for the Eastern District of Michigan............ 286 Biographical information and questionnaire................... 287 Questioning by: Senator Smith............................................ 374 Statement of David M. Lawson, of Michigan, to be U.S. District Judge for the Eastern District of Michigan..................... 326 Biographical information and questionnaire................... 327 Questioning by: Senator Smith............................................ 377 THURSDAY, APRIL 27, 2000 Statements of Committee Members Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........ 381 Thurmond, Hon. Strom G., U.S. Senator from the State of South Carolina....................................................... 384 Attachments.................................................. 628 Introduction of Nominees Kent J. Dawson................................................... 394 Nicholas G. Garaufis............................................. 429 Phyllis J. Hamilton.............................................. 461 Roger L. Hunt.................................................... 499 Gerard E. Lynch.................................................. 538 Donnie R. Marshall............................................... 582 Presenters Boxer, Hon. Barbara, U.S. Senator from the State of California, prepared statement............................................. 393 Bryan, Hon. Richard H., U.S. Senator from the State of Nevada.... 387 Prepared statement........................................... 388 Feinstein, Hon. Dianne, U.S. Senator from the State of California, prepared statement................................. 393 Hutchison, Hon. Kay Bailey, U.S. Senator from the State of Texas. 389 Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont, prepared statement............................................. 392 Moynihan, Hon. Daniel Patrick, U.S. Senator from the State of New York........................................................... 385 Reid, Hon. Harry, U.S. Senator from the State of Nevada.......... 385 Schumer, Hon. Charles E., U.S. Senator from the State of New York 389 Testimony of Nominees Statement of Kent J. Dawson, of Nevada, to be U.S. District Court Judge for the District of Nevada............................... 394 Biographical information..................................... 395 Questioning by: Senator Thurmond......................................... 578 Questions and Answer by: Senator Smith............................................ 641 Senator Sessions......................................... 643 Statement of Nicholas G. Garaufis, of New York, to be U.S. District Court Judge for the Eastern District of New York...... 429 Biographical information..................................... 430 Questioning by: Senator Thurmond......................................... 578 Questions and Answer by: Senator Smith............................................ 645 Senator Sessions......................................... 647 Statement of Phyllis J. Hamilton, of California, to be U.S. District Court Judge for the Northern District of California... 461 Biographical information..................................... 462 Questioning by: Senator Thurmond......................................... 578 Questions and Answer by: Senator Smith............................................ 650 Senator Sessions......................................... 652 Statement of Roger L. Hunt, of Nevada, to be U.S. District Court Judge for the District of Nevada............................... 499 Biographical information..................................... 500 Questioning by: Senator Thurmond......................................... 578 Questions and Answer by: Senator Smith............................................ 655 Senator Sessions......................................... 657 Statement of Gerard E. Lynch, of New York, to be U.S. District Court Judge for the Southern District of New York.............. 538 Biographical information..................................... 539 Questioning by: Senator Thurmond......................................... 579 Questions and Answer by: Senator Smith............................................ 660 Senator Sessions......................................... 664 Statement of Donnie R. Marshall, of Texas, to be Administrator, U.S. Drug Enforcement Administration........................... 582 Biographical information..................................... 590 Questioning by: Senator Thurmond......................................... 584 Questions and Answer by: Senator Hatch............................................ 667 Senator Sessions......................................... 664 Senator Thurmond......................................... 681 WEDNESDAY, MAY 10, 2000 Statements of Committee Members Biden, Joseph R., Jr., U.S. Senator from the State of Delaware... 700 Letter from Allyson Y. Schwartz, Harrisburg, Pennsylvania.... 882 Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont (prepared statement)........................................... 880 Kohl, Hon. Herbert, U.S. Senator from the State of Wisconsin..... 956 Specter, Hon. Arlen, U.S. Senator from the State of Pennsylvania. 697 Introduction of Nominees Allen R. Snyder.................................................. 706 James J. Brady................................................... 752 Berle M. Schiller................................................ 800 Petrese B. Tucker................................................ 836 R. Barclay Surrick............................................... 882 Mary A. McLaughlin............................................... 921 Presenters Breaux, Hon. John B., U.S. Senator from the State of Louisiana... 697 Santorum, Hon. Rick, U.S. Senator from the State of Pennsylvania. 702 Warner, Hon. John W., U.S. Senator from the State of Virginia.... 702 Testimony of Nominees Statement of Allen R. Snyder, of Maryland, to be U.S. Circuit Court Judge for the District of Columbia Circuit............... 706 Biographical information..................................... 716 Questioning by: Senator Smith............................................ 710 Senator Specter.......................................... 713 Questions by: Senator Sessions......................................... 957 Senator Smith............................................ 959 Senator Thurmond......................................... 963 Statement of James J. Brady, of Louisiana, to be U.S. Circuit Court Judge for the Middle District of Louisiana............... 752 Biographical information..................................... 756 Questions by: Senator Thurmond......................................... 990 Senator Smith............................................ 991 Senator Sessions......................................... 994 Statement of Berle M. Schiller, of Pennsylvania, to be U.S. Dirstrict Court Judge for the Eastern District of Pennsylvania. 800 Biographical information..................................... 806 Questioning by: Senator Specter.......................................... 800 Senator Biden............................................ 803 Questionnaire................................................ 806 Questions by: Senator Thurmond......................................... 964 Senator Sessions......................................... 965 Senator Smith............................................ 967 Statement of Hon. Petrese B. Tucker, of Pennsylvania, to be U.S. District Court Judge for the Eastern District of Pennsylvania.. 836 Biographical information..................................... 843 Questioning by: Senator Specter.......................................... 836 Senator Biden............................................ 840 Senator Smith............................................ 985 Senator Sessions......................................... 987 Senator Thurmond......................................... 990 Statement of Hon. R. Barclay Surrick, of Pennsylvania, to be U.S. District Court Judge for the Eastern District of Pennsylvania.. 882 Biographical information..................................... 886 Questioning by: Senator Specter.......................................... 883 Questions by: Senator Thurmond......................................... 969 Senator Smith............................................ 970 Senator Sessions......................................... 973 Statement of Mary A. McLaughlin, of Pennsylvania, to be U.S. District Court Judge for the Eastern District of Pennsylvania.. 921 Biographical information..................................... 926 Questioning by: Senator Specter.......................................... 921 Questions by: Senator Thurmond......................................... 976 Senator Sessions......................................... 977 Senator Smith............................................ 981 NOMINATIONS OF RANDOLPH D. MOSS (ASSISTANT ATTORNEY GENERAL) DEPARTMENT OF JUSTICE; JULIO M. FUENTES AND JAMES D. WHITTEMORE (U.S. DISTRICT JUDGES) ---------- TUESDAY, FEBRUARY 22, 2000 U.S. Senate, Committee on the Judiciary, Washington, DC. The committee met, pursuant to notice, at 3:24 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the committee) presiding. Also present: Senators Specter, Leahy, and Torricelli. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH The Chairman. I apologize for being late here, but I was in a very important top-secret intelligence meeting, and I just couldn't finish up on time. But it was very important that I did what I was supposed to do there. Today the committee is holding its first nominations hearing of the second session of the 106th Congress. We will hear from two judicial nominees--one circuit court nominee and one district court nominee--and one Justice Department nominee. We will have three panels. 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 Justice Department nominee Mr. Randolph Moss, and the third panel will consist of the two judicial nominees, Judge Julio Fuentes and Judge James Whittemore. Now, before we turn to the panels, if the ranking member-- well, excuse me. When the ranking member comes in, I will be happy to have him make any comments he cares to make. Now, if the sponsors of the nominees will take their seats at the witness table, we will begin, and I apologize to you. It is just one of those very important intelligence meetings that I just couldn't leave at the time, so I apologize to you, Senator Mack. We will turn to you. STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Mack. Mr. Chairman and members of the committee, I am delighted to be here today to recommend James Whittemore for confirmation, but before I discuss the distinguished career of Judge Whittemore, I would like to thank this committee once again for its responsiveness to the needs of the Florida judiciary. At this moment the State of Florida has seven vacancies in its Federal judicial system. Both Senator Graham and I are eager to work with the committee this session to confirm qualified candidates to fill these vacancies and ease the pressure on Florida courts. At the present time, six of the seven vacant judgeships are in the Middle District of Florida, and, Mr. Chairman, it is an honor for me to recommend Judge James Whittemore for confirmation to serve in the Middle District. Since 1990, Judge Whittemore has served as a circuit court judge for the Thirteenth Judicial Circuit in Hillsborough County, FL. Prior to becoming a circuit court judge, Judge Whittemore spent 12 years on the other side of the bench as a Federal public defender and as an attorney with his own civil and criminal practice. Recently, Judge Whittemore was recognized for his impressive legal service. In 1998, Judge Whittemore was awarded the Outstanding Jurist Award by the Hillsborough County Bar Association Young Lawyers Division, and in 1999, he was again awarded the Outstanding Jurist of 1999, but this time the award came from the Florida Bar Association Young Lawyers Division. The Florida Bar stated Whittemore had--and this is a quote now--``a reputation of excellence in judicial decisionmaking and exemplary commitment to the education and development of young lawyers in the Thirteenth Judicial Circuit and statewide.'' In addition to his career achievements, Judge Whittemore has taken time out of his busy schedule to give back to the legal community by serving on the Florida Supreme Court Committee on Standard Jury Instructions in Civil Cases and as chair of the Florida Bar Grievance Committee and as president of the William Glenn Terrell Inn of Court. I have examined Judge Whittemore's qualifications and find him to be a highly qualified nominee. As a result of his extensive experience in the courtroom, it is my belief that Judge Whittemore is well prepared to handle the challenges of a Federal district court judge. I believe that he is a candidate that both the Judiciary Committee and the full Senate should be proud to confirm. And, again, Mr. Chairman, I express to you my appreciation for your and this committee's sensitivity to the needs of the State of Florida. The Chairman. Well, thank you, Senator Mack. We appreciate your coming, and sorry you had to wait for me. I certainly appreciate your good statement, and I am sure Judge Whittemore does as well. Senator Mack. And I am sure that--Senator Graham was here a little bit earlier. He had some folks waiting in his office, and I am sure he will be back to make a statement. The Chairman. If he isn't, we will certainly put his statement in the record. Thanks so much. Senator Torricelli. STATEMENT OF HON. ROBERT G. TORRICELLI, A U.S. SENATOR FROM THE STATE OF NEW JERSEY Senator Torricelli. Mr. Chairman, I was going to make remarks with regard to both Mr. Moss and Judge Fuentes, if that was appropriate. I know Senator Sarbanes had hoped to be here with regard to Mr. Moss' nomination but was detained, so both speaking on behalf of myself and Senator Sarbanes, I wanted to make some comments with regard to his nomination. Mr. Chairman, on November 9 of last year, the President nominated Randolph Moss to serve as Assistant Attorney General for the Office of Legal Counsel. Mr. Moss has served in the Office of Legal Counsel since February 1996--since March 1996 as Deputy Assistant Attorney General and since July 1998 as Acting Assistant Attorney General. While at the Office of Legal Counsel, Mr. Moss has personally and in a supervisory capacity provided advice within the executive branch on a broad range of complex questions of constitutional and statutory law, issued formal legal opinions, reviewed Executive orders and attorney general orders for form and legality, and resolved interagency legal disputes. From December 1989 until joining the Department of Justice, Mr. Moss practiced law at Wilmer, Cutler and Pickering. The principal areas of his practice included administrative law, complex civil litigation, antitrust and constitutional law. Mr. Moss became a partner of the firm in January 1994. Mr. Moss graduated summa cum laude with departmental honors in philosophy from Hamilton College in Clinton, NY. He was elected Phi Beta Kappa, served as president of the Root-Jessup Public Affairs Council, and received the Patterson Prize for excellence in philosophy. He then entered Yale Law School, where he served as editor of the Yale Law Journal and as a Coker fellow-in-instruction. After graduating from Yale, Mr. Moss received a John M. Olin research fellowship and spent 3 months examining the history and theory of the common law forms of action at the Yale Law School Center for Studies in Law, Economics and Public Policy. Subsequently, Mr. Moss served as a law clerk for then-U.S. District Judge Pierre Leval from December 1986 to December 1987, and for U.S. Supreme Court Justice John Paul Stevens from February 1988 to September 1989. Mr. Moss was born in Springfield, OH, and currently lives in Bethesda, MD. He is married and has two children, ages 3 and 6. Chairman, I am very proud to help introduce him to the committee today, again, not only for myself but for Senator Sarbanes, and I look forward to his continuing service in the Department of Justice in an outstanding career. I know the President is proud of this nomination, as I am sure are Mr. Holder and Ms. Reno. The Chairman. Thank you, Senator Torricelli. We will turn to the ranking member now. STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Senator Leahy. Mr. Chairman, I am delighted we are having this hearing. It is historic, the first one of this century-- unless you count the century as next year. But for those who are counting it for this year, it is the first one. I have looked forward to this hearing. I am very grateful, Mr. Chairman, you announced it back on February 10 at our first committee business meeting of the year. We have an outstanding group of nominees before us, including the Federal judicial nominees and the nominee to head the Office of Legal Counsel at the Department of Justice. What Senator Torricelli said was absolutely right. I have a long statement, but I know you want to get to the people here, and I will put my statement in the record. I would hope, even though it is an election year, that we could move forward on some of these nominations. There are too many still pending. We do have a lot of areas where we need to have judicial vacancies filled. There are some places where judicial crises have been declared. And once these people have been nominated, they ought to know whether they are going to go forward or whether they are going to be held in limbo. So I would hope that the nominees before us today will go forward. I hope that they will be confirmed by this committee and by the Senate. In any event, Mr. Chairman, I thank you for holding the hearing, and I will put my whole statement in the record. [The prepared statement of Senator Leahy follows:] Prepared Statement of Senator Patrick J. Leahy This afternoon the Judiciary Committee holds it first confirmation hearing for judicial nominees this year and the first confirmation hearing this century. I have looked forward to this hearing for some time and was grateful when the Chairman announced it back on February 10 at our first Committee business meeting of the year. We have an outstanding group of nominees who are with us today, including federal judicial nominees and the nominee to head the Office of Legal Counsel at the Department of Justice. In spite of our efforts in 1998 in the aftermath of strong criticism from the Chief Justice of the United States, the vacancies facing the federal judiciary are, again, topping 75 and the vacancies gap is, again, moving in the wrong direction. We have more federal judicial vacancies extending longer and affecting more people. As the Chairman has noted in his comments on the constitutional responsibility of this Committee and the Senate to act upon judicial nominations sent to us by the President, our ``primary interest must be what is best for the country and the Judicial Branch.'' Chairman Hatch has noted that ``we cannot afford to lose sight of the fact that for each nominations statistic, there is a man or woman whose career has been placed on hold and whose reputation may suffer unwarranted and unintended detriment if we do not perform our duty.'' I have often said that if this were up to Senator Hatch and me to work out, we could make a good deal of progress very quickly. The country in now faced with 78 current vacancies and we know of seven more on the horizon. Earlier this month the Judicial Conference renewed its request that Congress authorize an additional 59 judgeships and convert 10 existing temporary judgeships to permanent positions. Taken together these figures provide a truer picture of the vacancies that plague the federal courts around the country. There are only 24 weeks left in session this year for the Senate for hearings, Committee consideration and Senate consideration, debate and votes on these nominees and those that continue to be received. To date, the only actions taken by the Senate have been overwhelming votes in favor of two of the seven nominees held over from last year. Two years ago, Chief Justice William Rehnquist warned that ``vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary.'' Bureaucratic imperatives driven by the pressures of a burgeoning workload seem to be replacing the judicial deliberation needed for the fair administration of justice. That is not the way to continue the high quality of decision-making for which our federal courts are admired or to engender confidence in our justice system. Especially troubling is the circuit emergency that was declared four 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. 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 either. I wish that the Senate had confronted it by expediting consideration of the nominations of Enrique Moreno and Alston Johnson last year. The Senate is back to a pace of confirming one judge a month. That is not acceptable, does not serve the interests of justice and does not fulfil our constitutional responsibilities. For the last several years I have been urging the Judiciary Committee and the Senate to proceed to consider and confirm judicial nominees more promptly and without the months of delay that now accompany so many nominations. Judge Julio Fuentes is one such nominee. By all accounts, he is a qualified nominee with judicial experience in New Jersey. He has the support of his home state Senators. Still, his hearing has been delayed a year. I will work to try to have the Senate vote upon this nomination without further delay this year. I look forward to the Committee expeditiously completing its consideration of all the nominations included in today's hearing. During Republican control of the Senate, it has taken more than four years to get to a Senate vote on the nomination of Judge Richard Paez to the Ninth Circuit. It took almost a year and one-half to finally get a vote on the nominations of Judge Sonia Sotomayor to the Second Circuit, a nominee reportedly held up because some feared that she might be nominated to the Supreme Court. Jorge Rangel was never accorded a hearing and Enrique Moreno awaits his. What progress we started making in 1998 has been lost, and the Senate is again failing even to keep up with normal attrition. Far from closing the vacancies gap, the number of current vacancies has grown by more than 50 percent from when Congress recessed in 1998. I have challenged the Senate to regain the pace it met in 1998 when the Committee held 13 hearings and the Senate confirmed 65 judges. That would still be one fewer than the number of judges confirmed by a Democratic Senate majority in the last year of the Bush administration in 1992. In fact, in the last two years of the Bush administration, a Democratic Senate majority with a Republican President confirmed 124 judges. We now have a Democratic President with a Republican-controlled Senate, and it would take 90 confirmations this year for the Senate to equal that total. Progress in the reduction of judicial vacancies was reversed in 1996, the last Presidential election year, when Congress adjourned leaving 64 vacancies, and in 1997, when Congress adjourned leaving 80 vacancies. No one was happier than I that the Senate was able to make some head way in 1998 toward reducing the vacancies. I have praised Senator Hatch for his effort. Unfortunately, vacancies are now back up to 78 and a vacancy rate of over 9 percent for all federal courts and almost 15 percent for the courts of appeals. There is a myth that judges are not traditionally confirmed in Presidential election years. That is not true. Recall that 64 judges were confirmed in 1980, 44 in 1984, 42 in 1988 when a Democratic majority in the Senate confirmed 42 Reagan nominees, and, 66 in 1992 when a Democratic majority in the Senate confirmed 66 Bush nominees. The 17 confirmations in 1996 were an anomaly that should not be repeated. That has led to years of slower and lower confirmations and heavy backlogs in many federal courts. Qualified nominees like Judge Julio Fuentes, Judge Richard Paez and Marsha Berzon deserve to be treated with dignity and dispatch--not delayed for years. We are seeing outstanding nominees nitpicked and delayed to the point that good women and men are being deterred from seeking to serve as federal judges. All of this despite the fact that, by all objective accounts--including the recent studies cited in this week's National Journal--the judges that President Clinton has appointed have been a moderate group, rendering moderate decisions, and certainly including far fewer ideologues than were nominated during the Reagan Administration. Our independent federal judiciary sets us apart from virtually all others in the world. Every nation that in this century has moved toward democracy has sent observers to the United States in their efforts to emulate our judiciary. Those fostering this slowdown of the confirmation process and other attacks on the judiciary are risking harm to institutions that protect our personal freedoms and independence. We must redouble our efforts to work with the President to end the longstanding vacancies that plague the federal courts and disadvantage all Americans. That is our constitutional responsibility. I look forward to Senate action on the long-delayed nominations of Judge Richard Paez, Marsha Berzon and Tim Dyk. I continue to urge the Senate to meet our responsibilities to all nominees, including women and minorities, and look forward to prompt and favorable action on the nominations of Judge Julio Fuentes to the Third Circuit, Judge James Wynn, Jr. to the Fourth Circuit, Enrique Moreno to the Fifth Circuit, and Kathleen 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 of the federal courts around the country. I urge all Senators to join us to make the federal administration of justice a top priority for the Senate this year. The Chairman. Well, thank you, Senator. Senator Graham, I apologize for being so late to get here today. I was in the Intelligence Committee and had to finish up what I was doing there. We will turn to you at this time. STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Graham. Thank you very much, Mr. Chairman, Senator Leahy, Senator Torricelli. I appreciate this opportunity with my colleague, Senator Mack, to present an outstanding nominee for the Middle District of Florida, Federal district judge. Mr. Chairman, I want, before proceeding, to thank you for scheduling this hearing and for this committee's thorough review of the judicial nomination. We are particularly appreciative that Judge Whittemore is on your first panel of confirmation hearings. Before I proceed with some comments on Judge Whittemore, let me just take a moment about the Middle District of Florida. Senator Leahy just used the term ``crisis'' to describe some of our judicial circuits. I believe that is an appropriate term to describe the Middle District of Florida, one of the highest- caseload-per-judge districts in the Nation. This committee recognized that crisis in 1999 when it authorized four additional positions for the Middle District of Florida. Senator Mack and I hope that we will soon be before you with recommendations and Presidential nominees for those newly created positions. The position that we are here today for is a vacancy among the current numbers of the Middle District of Florida. And so as you have been so understanding in the past, I would urge your continued appreciation of the severity of the caseload in the Middle District of Florida through the early attention to this nomination. I am very pleased with those introductory remarks to introduce the nominee for the Middle District of Florida, the Honorable James David Whittemore. Mr. Chairman, with your permission, I would like to recognize and introduce members of Judge Whittemore's family who have traveled from Florida to be here today. The judge's wife is Kay Whittemore. Kay, would you please stand? Incidentally, Kay is a practicing pharmacist, so maybe with some of our focus of attention on prescription medication, she might be of assistance in that as well. The Chairman. Good to have you here. Senator Graham. She and the judge have been married for 22 years, and they are the parents of three children. Two of those children are with us today: Chris, who is a sophomore at King High School in Tampa, which happens to be the same high school that Judge Whittemore attended a generation ago; and their 8- year-old daughter Kelly. Jason, who is a freshman at the University of Florida, could not be here today because he is taking examinations. We are also pleased to be joined by Judge Whittemore's brothers, Kent and Don, if they would please stand. And last, but not least, we are honored to have Judge Whittemore's parents, James and Dorothy Whittemore, who are also with us today. For Senator Thurmond's benefit, I would point out that Mr. and Mrs. Whittemore brought their son into the world in Walterboro, SC, so he is distinguished both in his qualifications as well as his roots, if you would pass that on to Senator Thurmond. The Chairman. I will. I am not going to ask him where he stands on the flag, though. [Laughter.] Senator Graham. No comment. The Chairman. Maybe I will. Senator Graham. Mr. Chairman, this nominee is an experienced, a respected jurist, who has been on the bench for a decade, and as a trial lawyer in our State court system prior to that. He was recommended by the nonpolitical screening committee comprised of a cross-section of lawyers and laypersons. Senator Mack and I offer our bipartisan support for this nomination and urge prompt review by this committee. Judge Whittemore has excellent qualifications for service on the Federal bench: Solid education, decades of experience in the legal profession as a private practitioner, assistant public defender, and trial judge, and with the respect of his profession and the community. Judge Whittemore received his law degree from Stetson University College of Law and his undergraduate degree from the University of Florida. Since 1990, Judge Whittemore has been a circuit court judge in Florida's Thirteenth Circuit in Hillsborough County, of which Tampa is the county seat. Mr. Chairman, Judge Whittemore was just named Florida's Outstanding Jurist for 1999 by the Florida Bar's Young Lawyers Division in recognition of his commitment to the education of young lawyers. For all those who believe that recognition by our peers is indeed a high form of flattery, I would point out that Judge Whittemore was nominated for this award by one of his judicial colleagues. I note that Judge Whittemore has achieved something that at times is elusive for politicians: The editorial support of his hometown newspaper. I respectfully request that I be permitted to include in the record an editorial from the Tampa Tribune of June 19, 1999, entitled ``A Judge Who Deserves a Promotion.'' The Chairman. Without objection. [The editorial follows:] [GRAPHIC] [TIFF OMITTED] T3031A.001 Senator Graham. Senator Mack and I concur and thank you for your consideration of this nomination. Mr. Chairman, this nomination will fill a vacancy in one of the biggest, busiest judicial circuits in the country. We look forward to continuing to assist this committee in any way we can to complete the review of this worthy nominee. The Chairman. Thank you, Senator Graham. We appreciate it. We will turn to Senator Lautenberg now. I think it is great praise that you and Senator Mack have been here for Judge Whittemore. I think that will go a long way towards moving this through. So we appreciate you being here, and we also appreciate Senators Lautenberg and Torricelli as well. STATEMENT OF HON. FRANK R. LAUTENBERG, A U.S. SENATOR FROM THE STATE OF NEW JERSEY Senator Lautenberg. Thank you very much, Mr. Chairman. I am grateful to you for giving us the opportunity to speak in support of an outstanding judicial nominee, Judge Julio Fuentes. He is here with his family, and it is a privilege to be able to present someone to the committee who has such outstanding credentials. Because not only does Judge Fuentes have the professional capacity, Mr. Chairman, the experience that he brings to this job, but he also has a personal story of what America is all about. He sets a wonderful, wonderful example for those who look at our society and see that you can make progress if you have the ability and are willing to expend the effort. But, Mr. Chairman, I want to take a moment to thank you personally. We have had many private discussions. I consider us good friends, and I commend you for your hard work in moving nominees to New Jersey's Federal courts through this committee and for supporting our nominees on the Senate floor. The Chairman. Thank you. Senator Lautenberg. You were instrumental in helping in so many ways, Mr. Chairman, for instance, the confirmation of Mary Ann Trump Barry to the third circuit and Faith Hochberg and Joel Pisano to the district court for New Jersey. When Judge Fuentes is confirmed--and I am hopeful and confident that he will be--all of New Jersey's seats in the Federal judiciary will have been filled. That is a wonderful thing for us because of the enormous backlog. And it is extremely important that our judiciary be at full strength, and I am sure all members of the committee are aware of this, Mr. Chairman. The Chairman. That is a tribute to you and Senator Torricelli, it seems to me. Senator Lautenberg. Well, I thank you, Mr. Chairman. We have worked hard and have presented, I think, excellent candidates for the court. Our courts can't fulfill their constitutional responsibility to dispense justice fairly and efficiently if there aren't enough judges to hear the cases. So, again, I thank you for your help and for your support of our nominees to the Federal bench. And today the committee has before it an exceptional nominee from New Jersey, Judge Fuentes. In many ways, as I noted earlier, his life demonstrates the promise of America, the idea that anyone committed to getting an education and working hard can build a distinguished career. Judge Fuentes was not born to wealth or privilege. He was raised by a single parent. His mother worked hard as a nurse. But he pursued his education diligently, earning a college degree while serving his country in the Army's special forces. Eventually, he earned not only a law degree, but also two master's degrees. And after completing law school, Judge Fuentes began building a successful legal practice, honing his skills as an associate with a New Jersey law firm in Jersey City. He later established his own firm, and he handled a wide range of criminal and civil matters. In 1978, he was appointed to a judgeship on the Newark Municipal Court, where he served until his appointment to the New Jersey Superior Court in 1987. And as a superior court judge, he presided over criminal cases and a wide range of civil disputes, including product liability, environmental suits, and property claims. He has ruled on a number of Federal and State constitutional issues. In addition to his courtroom duties, Judge Fuentes has helped address important issues facing the New Jersey courts. He served on two New Jersey Supreme Court task forces, one on drugs in the courts and the other on minorities in the legal system. And he has also volunteered his time to help members of the community. He has mentored many Latino youths, and he has received several awards for his public service. Because of his dedication and commitment to others, Judge Fuentes is held in exceptionally high esteem by his judicial colleagues, the lawyers who appear before him, as well as the people in New Jersey. And those who know him well describe him as bright and dedicated and even-tempered, but he is also a man with humility. And I hope I have not embarrassed him with these remarks. In short, I am confident that Judge Fuentes' depth of experience, legal knowledge, compassion, and temperament will make him an exceptional Federal judge. And I thank you, Mr. Chairman, once again for your fairness in dealing with us and giving Judge Fuentes this hearing. And I hope that you and all the members of the committee will support his nomination. The Chairman. Well, thank you so much, Senator Lautenberg. It is high praise for both you and Senator Torricelli to be strongly behind Judge Fuentes, and we will look forward to his hearing in just a few minutes. Thank you for being here. We appreciate it. Well, we are pleased to have with us today Mr. Randolph D. Moss, of Maryland, who has been nominated for and currently is acting as the Assistant United States Attorney General for the Office of Legal Counsel. Mr. Moss, if you will come to the witness table, raise your right hand, I will swear you in. 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. Moss. I do. The Chairman. Thank you. Do you have a statement you would care to make, Mr. Moss? STATEMENT OF RANDOLPH D. MOSS, OF MARYLAND, TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE Mr. Moss. I do. Thank you, Mr. Chairman. The Chairman. Please introduce your family, too. Mr. Moss. Thank you, Mr. Chairman. I have with me today my wife, Elizabeth Collery, with my son, William, in her lap. William's highlight of the day, if not of the entire month, was getting a chance to visit with the Capitol Police before the hearing. The Chairman. I see. He looks like he had an interesting visit there. He is sound asleep. [Laughter.] Mr. Moss. He has the patch, which I am sure he will carry around for some time. This is my daughter, Emily Moss. The Chairman. Emily, you are bright and wide awake, I tell you. Mr. Moss. I also have my parents, Howard Moss and Adrienne Moss. The Chairman. Happy to welcome you here. Mr. Moss. My brother, Eric Moss, and his wife, Maddy. The Chairman. Good to have you with us. Mr. Moss. My brother-in-law, Donald Berger, and my niece, Natalie Berger, and nephew, Jack Berger. Mr. Moss. My sister is with the youngest in that family at a conference in Florida today and couldn't be here. In addition, my mother-in-law is here, Helen Collery, who is in from New York. The Chairman. Welcome. Mr. Moss. And my father's brother, Robert Moss, is in from Massachusetts as well. The Chairman. We are happy to welcome all of you here, and we look forward to hearing your testimony at this time. Mr. Moss. Thank you, Mr. Chairman, Senator Torricelli. I am deeply honored to appear before you today as the nominee to be the Assistant Attorney General for the Office of Legal Counsel. I would like to first thank you, Mr. Chairman, and the committee for holding this hearing to consider my nomination. I would also like to thank the President for nominating me and the Attorney General for her support, and I would like to express my gratitude to my family for their unfailing encouragement and devotion. Mr. Chairman, when the first Congress established the Office of the Attorney General in 1789, it assigned to that office two duties: To represent the interests of the United States in litigation before the Supreme Court, and to provide legal advice within the executive branch. In recent times, the responsibility to provide legal advice within the executive branch has been performed on a day-to-day basis by the Office of Legal Counsel. It is the charge of this small office of fewer than 25 lawyers to assist the Attorney General in performing her legal duty to provide to the President and the heads of the executive branch agencies advice and opinions on questions of law. The former Assistant Attorneys General for the Office of Legal Counsel have included many public servants of great distinction. Indeed, it is humbling to me to be nominated to serve as the head of an office that has been led in the past by such distinguished lawyers as Chief Justice William Rehnquist, Justice Antonin Scalia, and former Attorneys General Nicholas Katzenbach and William Barr. They and the other distinguished attorneys who have headed the Office of Legal Counsel have established and maintained an esteemed tradition of providing candid, objective legal advice without regard for politics or policy. They have established and maintained a tradition of favoring the long-term interests of the United States, of the executive branch, and, most importantly, the Constitution over the immediate interests of the day. And they have established and maintained a tradition of excellence epitomized by thorough, careful, and balanced legal reasoning. These traditions are profoundly important to Government. As Attorney General Griffin Bell observed over 20 years ago, ``In this complex society, the need for sound legal advice in advance of Government action has become particularly acute.'' That observation is, if anything, even more true today, which is why it is essential to our system that the Office of Legal Counsel approach the law with no less reverence than the courts, that we do our best each and every day to interpret and apply the law fairly and correctly, and that we carefully distinguish between the best view of the law and what might merely be a colorable legal argument. I can assure you that, if confirmed by the Senate, I will do everything in my power to continue the esteemed tradition of the Office of Legal Counsel, to apply the law faithfully and fairly, and provide advice that I believe embodies the very best view of the law. Mr. Chairman, it has been my privilege to have spent the past 4 years in the Office of Legal Counsel. I cannot imagine a job that affords any greater personal and professional satisfaction. That satisfaction comes from working with a remarkable group of talented and committed lawyers who share a common respect for the law and our legal institutions and an unwavering dedication to getting the answer right. There have been times when the job has been extremely demanding, but in the end of even the hardest day, there has always been the reward of knowing that you have done your absolute best to do the right thing. I am particularly honored to be before this committee today because I believe the Office of Legal Counsel stands for a devotion and fidelity to the law, and I can think of no higher calling for a lawyer. I thank you for holding this hearing, and I would be happy to answer any questions the committee may have. Questioning by Senator Hatch The Chairman. Well, thank you, Mr. Moss. You know, the Office of Legal Counsel assists the Attorney General in carrying out her responsibility to give advice and opinion upon questions of law when required to do so by the President of the United States, a statutory duty that the Department has had since the enactment of the first Judiciary Act of 1789. As part of the executive branch, OLC serves the President, but functioning as outside counsel, it is the obligation of the office to give the President detached, objective advice even if what turns out to be the best legal answer is not what the President was hoping to hear. Now, since you have been Acting Assistant Attorney General, have you insulated your office from the political pressures of the White House? Mr. Moss. I believe so, Mr. Chairman. I believe thatit is the highest calling of the Office of Legal Counsel. If we do one thing, that one thing has to be ensuring that our judgments are made simply on the best view of the law. They are not made for any political reason and they are not made simply to achieve a policy goal that people want to achieve, but because we think it is the best view. And that has been the tradition of the Office of Legal Counsel for many, many years, and if confirmed by the Senate, what I would hope most is that people would look back and conclude that I continued that tradition as well. The Chairman. What do you consider to be the proper balance between offering legal advice to the Attorney General, that is, stating what you believe the law to be, and advancing a particular policy position to the Attorney General? Mr. Moss. Well, I think in the end our ultimate responsibility, our responsibility to the country, to the Constitution, and to the Attorney General, is to provide what we think is the best view of the law. I think that is what the Office of Legal Counsel exists for, and I think that is why we are there. I think there are times in which we will look at a difficult legal question and we will come to the conclusion that a proposed approach to a policy objective simply is not legally available based on our best interpretation of the law. And when that happens, we do and should say, No, you can't do it that way. I do think, however, as lawyers for the Government, we have an obligation, if asked, to think about whether there is a legally permissible way of achieving a policy goal. The Chairman. Mr. Moss, let us assume for a moment that you advised the President that a proposed course of conduct would be unconstitutional. What would you do if the President disregarded your advice and proceeded with the type of conduct which you had finally advised him would be unconstitutional? What would you do? Mr. Moss. Well, if I were to conclude that the President was simply ignoring legal advice and acting in a fashion that I believed was unconstitutional where we advised that something shouldn't take place, I think the proper course would be for me to resign. I think there are occasions in which lawyers in good faith can disagree over a legal question, and I don't want to foreclose the possibility that either the Attorney General or the President, who has the ultimate responsibility, could reach a different legal conclusion. If they did reach a different legal conclusion and were not simply ignoring our advice, I think I then would have to examine and consider whether that different legal conclusion represented a lack of faith in my ability to do my job, and if I reached that conclusion, I would, I think, have to resign as well. The Chairman. 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, as you know. The second amendment, however, which protects the rights of law-abiding citizens to own firearms in this country, has not. Now, do you believe that the second amendment ought to be applied to the States? Mr. Moss. Mr. Chairman, that is not a question that I have carefully researched or analyzed. Someone did recently tell me that they thought that there was evidence in the debates surrounding the ratification of the civil rights amendments, that there was an intent to, in fact, incorporate and apply the second amendment to the States. But I have not independently examined that question. The Chairman. Well, if most of the other provisions of the Bill of Rights apply to the States, it seems natural to ask why shouldn't the second amendment. Let me see if I can put it a different way. 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? Mr. Moss. Mr. Chairman, as I sit here today, I cannot articulate such a rationale, and I have no reason to believe that there is such a rationale. I just simply am saying that it--I think any legal question I am reluctant to answer without having carefully studied it. The Chairman. Fair enough. When you were in law school, you authored a student note which criticized the Reagan administration's practice of obtaining consent decrees in school desegregation cases. In the note, you contend that the Reagan Justice Department, by obtaining consent decrees in desegregation cases, which you argue precluded participation in the suit by affected parents and students, the Reagan administration by obtaining these consent decrees purposefully sought ``weaker'' remedies for constitutional violations by school districts than were ``legally obtainable.'' In the note, you contend that the consent-decree settlements obtained by the Reagan Justice Department were ``weak'' because they did not ``set integrative goals mandating that the school districts achieve specific levels of desegregation.'' Now, for the sake of the record, what did you mean by ``integrative goals mandating * * * specific levels of desegregation''? Did you mean quotas? Is there a difference between goals and quotas? And if so, please tell me. Mr. Moss. Mr. Chairman, I did not intend to suggest either a goal or a quota. In fact, in the note, one of the things I discuss is the fact that the Supreme Court has never been-- certainly at the time I wrote the note had not been particularly clear in defining what the ultimate goal of desegregation is. What I said and I thought the best articulation of what the goal is, is that at the end of the day, where there has been a history of de jure segregation, of purposeful segregation, the goal at the end of the day is to ensure that you no longer have a white school and a black school but you just have schools. I didn't intend to suggest that that was in any means addressed to quotas or goals or anything of the sort but, rather, just to achieving the eradication of racial discrimination in the school system. The Chairman. OK; let me ask you a couple of questions about an office within the Justice Department, the Office of the Pardon Attorney. As you know, the Office of the Pardon Attorney was created by Congress and is funded by Congress. In general, Congress has authority to provide some guidance to the agencies it funds about how the money is spent, and I think you would agree that there is some level of guidance that Congress can constitutionallyexercise in relation to the pardon attorney. My question to you really is this: If Congress has the authority to provide guidance and exercise oversight as to how funds are spent, where is the line between congressional guidance and oversight of the pardon attorney on the one hand and then unconstitutional intrusion into the affairs of the executive branch on the other hand? Mr. Moss. Mr. Chairman, that is a very difficult question. It is a question on which actually I know members of the staff in the Office of Legal Counsel have been working and consulting with your staff. What I would say is that the Office of the Pardon Attorney stands in a fairly unique position in the executive branch because it is one of the very few offices that discharges what is purely a Presidential prerogative. The Framers did not give many exclusive prerogatives to the President. There is the appointment prerogative, the prerogative to receive Ambassadors, for example, and the pardon power is one of the few enumerated powers. And in that respect, it is my belief that Congress cannot regulate the pardon attorney to the extent the pardon attorney is acting on the President's behalf in exercising that exclusive authority. I do believe, however, Mr. Chairman, that you are quite correct in observing that it is the Congress that funds the Office of the Pardon Attorney and that there is some role for the Congress in ensuring that those funds are used in an appropriate fashion and for Congress to make judgments regarding how best to fund that office. The Chairman. OK; well, thank you. Senator Torricelli, do you have any questions? Questioning by Senator Torricelli Senator Torricelli. Mr. Moss, I only want to return to try to help you with the second amendment question. Mr. Moss. Thank you. Senator Torricelli. Since the second amendment is the only part of the Bill of Rights that does not restrict Federal power over the people but seems to restrict Federal power over the States, it seems to me somewhat unique. By Court interpretation, the Supreme Court, the second amendment's sole purpose seems to be to assure the rights of the State government to a well-ordered militia. Therefore, it would make no sense by selective incorporation to hold that amendment as applying to the States. It would be the regulation of the State by the State. Its only application would be in governing the relationship between the Federal Government and the State government. I am not going to ask you to comment on that or expand upon it because I would like to see you get confirmed today. [Laughter.] But I think for future reference, I think that is a helpful guide on the uniqueness of the second amendment. The Chairman. Don't pay too much attention to that. [Laughter.] We have heard that before. Mr. Moss. I know when to maintain my silence. Senator Torricelli. This is a good chance to use the fifth amendment. [Laughter.] Mr. Moss, there is this question now about the use of the death penalty by States and the Federal Government, and I have heard the Attorney General has raised this question. Given the use of DNA evidence of late, even some of us who have been strong supporters of the death penalty through the years have to admit to some concern. Governor Ryan of Illinois noted I think seven cases in Illinois of people on death row who were found by DNA evidence to have been innocent. Give me your reaction to the current Federal death penalty statutes as written to the degree that you believe they require a level of review, of proof, of fairness in the incorporation of evidence under Justice Department procedures to assure that the Federal Government is not going to find itself in the position of the State of Illinois with regard to innocent people and possible execution. Mr. Moss. Senator Torricelli, I don't regard myself to be an expert on the Federal death penalty. We are very rarely questioned--or questions are very rarely sent to the Office of Legal Counsel regarding the death penalty, although it does happen on rare occasion. It is my sense, though, without having gone back to review the Federal statutes recently, that they were crafted in a thoughtful and careful way and that the Congress in crafting those statutes was concerned about ensuring the fairness of the process, ensuring that there was appropriate counsel, appropriately skilled counsel to represent individuals in death penalty cases, and that to assure that the Federal death penalty system was as fair a one as it could be. Senator Torricelli. Do you believe today that under Federal procedures: No. 1, access to competent counsel on a timely basis is sufficiently assured; and, No. 2, the ability to present scientific evidence of the best kind now available is also assured. Do the problems that we are witnessing in State government do not concern you with respect to the Federal death penalty? Mr. Moss. Senator Torricelli, I think that I may be violating my own rule that I set forth to the chairman a moment ago in that I think that I need to be careful about opining on any legal question without studying it. And I have not gone back and looked at the Federal death penalty statutes. I would be happy to go back and look at that, and I am confident that that is the sort of thing that others in the Department of Justice---- Senator Torricelli. When the Attorney General reaches her judgment, as she recently announced, about her own confidence in the Federal death penalty, is she simply then getting advice from members of her own personal staff? Mr. Moss. Senator Torricelli, it is my understanding that there is one--there is an advisory committee within the Justice Department on the death penalty that is staffed from various offices. It is my understanding that the Deputy Attorney General's Office is involved in the administration of the death penalty, and that the Criminal Division is also involved in that process. And the Office of Legal Counsel is not on a day- to-day basis involved in those processes, although we would be available to answer a discrete legal question if presented to us. Senator Torricelli. Mr. Chairman, I have no further questions. The Chairman. Well, thank you. Just one other question on the pardon attorney. Can Congress require thepardon attorney to notify the victims when the President grants clemency or the President intends to grant clemency? Mr. Moss. I think, Mr. Chairman, that after the President has made a decision to grant clemency, that my concern and the concern that the Office of Legal Counsel in the Justice Department has articulated, it is substantially reduced, the concern about interfering with that executive prerogative---- The Chairman. If you say you can't, why not? Because Congress passed the Victims' Rights Act, which requires notification of victims. That is constitutional, isn't it? Mr. Moss. Mr. Chairman, I actually do believe that--I don't believe that the pardon power would preclude the Congress from passing a law that required notification to victims after the President had made a decision to grant clemency. I think there may be some questions in some discrete areas regarding the source of the power of the Congress to do so. But, in general, I think that if someone is about to be released from prison, that Congress could require that the victim of the crime that that individual committed be notified that that person is about to be released from prison. The Chairman. OK; well, thank you. I have looked at your record, and it is a very fine record. And let's see what we can do to move you along. I appreciate your appearing here today, and I appreciate having your family with you, and these two children, they have been pretty good kids, is all I can say. [Laughter.] That is great. Mr. Moss. I think so as well. Thank you. The Chairman. Thanks so much. Appreciate it. 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Well, we will now ask Judge Julio Fuentes of New Jersey, who has been nominated to be circuit judge in the U.S. Court of Appeals for the Third Circuit, and Judge James D. Whittemore of Florida, who has been nominated to be a district judge in the U.S District Court for the Middle District of Florida, to please come forward and take your seats. You are over here, Judge Fuentes; Judge Whittemore, right there. If you would, raise your right hands. 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 Fuentes. I do. Judge Whittemore. I do. Senator Torricelli. Mr. Chairman, could I use this occasion to address a question of Judge Fuentes' nomination and perhaps introduce him to the committee? The Chairman. Sure. STATEMENT OF HON. ROBERT G. TORRICELLI, A U.S. SENATOR FROM THE STATE OF NEW JERSEY Senator Torricelli. Mr. Chairman, I want to welcome Judge Whittemore and Judge Fuentes to the committee today, and particularly note with great pride the nomination of Judge Fuentes for the Third Circuit Court of Appeals. Mr. Chairman, there are many things about Judge Fuentes' nomination that should be noted today: first, I note with considerable pride that he would be the first person of Hispanic descent to serve on the Third Circuit Court of Appeals, which is a source of great pride to the growing population in New Jersey of people of Puerto Rican, Colombian, Dominican, and Cuban descent. The entire community feels an enormous pride at this great personal achievement, and also the achievement of an entire community. I should also note, Mr. Chairman, that the other thing historic about Judge Fuentes' nomination is he also served the briefest tenure in history on the District Court of New Jersey. Originally, Judge Fuentes was my nomination for the district court, and upon his interview by White House officials, they were so impressed with him that they told me that, indeed, they could not nominate him for the district court, but they were very pleased to nominate him for the court of appeals. He had less than a day on the district court as the President's nominee. And that is a considerable testament to his abilities and his career. I should note, Mr. Chairman, too, that he is joined by his family: his wife, Olma; his daughters, Karina and Olma, who are here with him today; and a third daughter, Lilly, who I understand, Judge Fuentes, is not able to be with you today. I know what this must mean to his family as well. Mr. Chairman, let me note simply about Judge Fuentes' career, if I could. From his days in law school to his current tenure on the Superior Court of New Jersey, Judge Fuentes has developed a reputation as a very accomplished member of the bar. He began his career at the State University of New York in Buffalo. He should have gone to Rutgers in New Jersey, but this single lapse of judgment has not precluded his nomination today. He was in legal practice, in private practice, for 7 years where he practiced both civil and criminal law, while also serving as a part-time judge in Newark's Municipal Court. In 1981, he assumed the bench as a full-time municipal judge where he remained until 1987 when he was promoted to the New Jersey Superior Court. He has now served 13 years on the State Superior Court where he has genuinely received a tremendous reputation among members of the bar. I would like, Mr. Chairman, to add in the record, with your permission, letters from Governor Whitman in support of Judge Fuentes' nomination, letters by Carlos Ortiz and Dewar Bradshaw from the Hispanic National Bar Association in support of his nomination, and from the New Jersey State Bar as well. With your permission, I would enter these in the record. The Chairman. Without objection, we will put them in the record. [The letters were not available at presstime.] Senator Torricelli. Mr. Chairman, then let me simply say that you have been very helpful to me in moving forward nominees for the district and appellate court, but in none of those instances have I felt any more pride than I do today with Judge Fuentes. I am very grateful for you moving this nomination. Indeed, with Judge Fuentes' nomination, each of the nominations in New Jersey that we have brought forward, you will have now moved toward confirmation, and for that I am very personally grateful. Judge Fuentes, I am very proud to have been part of this achievement in your life and very grateful for your willingness to serve the people of our country. Judge Fuentes. Thank you, Senator Torricelli. The Chairman. Well, thank you, Senator Torricelli. That is great praise, and I have a lot of respect for Senator Torricelli. Would either of you care to make a short statement to the committee? We will start with you first, Judge Fuentes, if you care to, and then to you, Judge Whittemore. TESTIMONY OF JULIO M. FUENTES, OF NEW JERSEY, TO BE U.S. CIRCUIT JUDGE FOR THE THIRD CIRCUIT Judge Fuentes. Mr. Chairman, first I would like to thank you for giving me the opportunity to appear before this committee. It certainly is an honor and a pleasure for me and my family. I would like to thank---- The Chairman. It is an honor for us to have you here, your family as well. Judge Fuentes. Thank you, sir. I would like to thank Senator Torricelli and Senator Lautenberg for their gracious introductory remarks. I am particularly grateful to Senator Torricelli for presenting my nomination to the President. The Senator has introduced my family. I would like to mention them again. I am very proud of my family and very grateful that they are here. I want to thank my wife, Olma, who has given me tremendous support throughout our marriage. She is present. And my two daughters, Olma and Karina, who are here from college, and I greatly appreciate their support. The Chairman. Glad to have all of you here. Judge Fuentes. Lilly is unfortunately not able to come. She is married to a serviceman and is residing in North Carolina and could not be present today, but I have her support and I want to thank her as well. I would like to also mention that there are members of the National and the New Jersey Hispanic Bar Association who are present. I want to recognize Carlos Ortiz, who is present here today. I would like to also recognize Ramon De la Cruz and Maritza Berdote Byrne, who is here as well. Finally, Mr. Chairman, I would like to thank your staff and I would like to thank the staffs of Senator Leahy and Senator Torricelli for all the courtesies that they have shown throughout this process. Thank you, Senator. The Chairman. Thank you so much, Judge. Judge Whittemore. TESTIMONY OF JAMES D. WHITTEMORE, OF FLORIDA, TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA Judge Whittemore. Mr. Chairman, I would like to thank you and members of the committee for this opportunity. It is indeed a pleasure and an honor to testify before you here today. I would also like to thank the President for his confidence in nominating me for this prestigious judicial position, as well as acknowledge and thank Senators Graham and Mack for their diligent and cooperative efforts on behalf of not only myself but the other nominees in the Middle District of Florida. And my family as well I thank, my wife of 22 years as of Friday night. Thank you. questioning by senator hatch The Chairman. That is great. Glad to have you and your family here. Let me start with you, Judge Fuentes. You have worked as a judge for the last 22 years, serving first as a municipal judge for 9 years and then for the last 13 years as a superior court judge. For a portion of that time, you served in your court's Criminal Division, and I am sure you noticed the expansion of Federal crimes that has occurred during your 22 years as a judge. Now, the Supreme Court has noticed and has issued several federalism decisions in the past few years that have recognized that Congress has overreached in some instances and emphasized that State institutions have the power to govern State transactions and activities. In your view, how will the recent federalism decisions of the U.S. Supreme Court impact the work of the Federal courts, including the Third Circuit Court of Appeals? And do you believe or view this as a positive development or a negative one? Judge Fuentes. I would have to say it is a positive development in this sense, Mr. Chairman: The concept of federalism is a recognition that States and their institutions ought to be permitted to make their decisions, that is, to function separately in separate ways. This recognition I believe is what makes our Nation strong. I think that the National Government fares better when States are indeed allowed to perform their functions separately. questioning by senator hatch The Chairman. Judge Whittemore, you have been a State court judge in Florida for 13 years and have spent some time in your career working as a Federal public defender, as I understand it. Presumably, then, you have had some experience with the sentencing of criminals to terms of imprisonment. Prisons and jails are usually governed by laws passed by legislative bodies that can consider financial restraints, the problems of recidivism, and thebenefits of long or short sentences. Now, prisons and jails usually are administered by executive branch officials who have expertise in running the day-to-day operations of an incarceration facility. In your view, do the district court judges have the expertise to make rules for and to administer prisons? And wouldn't it be consistent with article III, the role of the Federal judge to do so? Judge Whittemore. Mr. Chairman, in my 10 years as a State court judge, of course, we exercise our jurisdiction and authority based on the laws promulgated by the State legislature. In those 10 years of experience and in perhaps my years as a defense attorney, judges are understood to follow the law, not make it. And those sentencing guidelines and the running of those prisons and facilities and the establishment of sentencing guidelines are a prerogative of the legislative branch. And it would be my purpose, if I am fortunate enough to be confirmed, to follow those laws. Florida has a set of sentencing guidelines which has been in effect for quite some time now, and State judges are given some leeway, but it is a statute which is intended to present some uniformity. And that is the extent of the judge's responsibility in terms of sentencing. The Chairman. Thank you. Let me turn to Senator Specter at this point. questioning by senator specter Senator Specter. Thank you, Mr. Chairman. Judge Fuentes, I have attended the hearing especially because you are up for nomination for the Court of Appeals for the Third Circuit, and so far Senator Torricelli and I have been able to maintain that long, unguarded border, western New Jersey and eastern Pennsylvania. But I wanted to hear your testimony. And on a serious vein, do you think that your experience in the State courts will be a significant plus for service on the Court of Appeals for the Third Circuit? Judge Fuentes. Thank you, Senator Specter. I, as you know, have been in the State court system for over 20 years. I have handled every kind of case, from the simplest traffic offense to the most complex criminal and civil matter. I have that breadth of experience in addition to which I work very hard and I am very dedicated, and if privileged to serve on the third circuit, I would bring that same hard work and dedication. I have no illusions about how difficult this job is. I think it is going to be very, very difficult. But it is a challenge that I am prepared, I believe, to meet and, of course, again, a privilege to serve on the court. I will take advantage of every course that is offered through the Federal Judicial Center to aid me in doing this job better. Senator Specter. In the Federal Court of Appeals, you are going to be facing very, very different issues. You are going to be facing Securities Act cases. You are going to be facing antitrust cases. You are going to be facing very complex litigation. But I do believe if you approach it with diligence and hard work, your background will stand you in good stead. You are going to be up with the tough taskmaster in Chief Judge Becker. He has an undermanned court--underpersonned court. He has some women on the court as well. And it is a very prestigious court, and it has got a tremendous volume of very high-powered litigation. But Senator Torricelli speaks of you very highly, and I know of your record. But I just wanted to come down and participate briefly in the hearing. Judge Whittemore, I am glad to see you nominated. We are U.S. Senators as well as Senators from specific States, and I have reviewed your resume, and I have no specific questions. Thank you very much, Mr. Chairman. Judge Whittemore. Thank you, Senator Specter. The Chairman. Thank you, Senator Specter. I appreciate that. Let me just ask a few other questions before we finish today. The Founding Fathers--and I will just ask both of you to answer this question. The Founding Fathers believed that the separation of powers in a government was critical to protecting the liberty of the people. Thus, they separated the legislative, executive, and judicial branches and the powers into three different branches of government, the legislative power being the power to balance moral, economic, and political considerations and make law, the judicial power being the power only to interpret 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? Judge Fuentes. I believe, Mr. Chairman, that a judge is required to accept the balance that is struck by the U.S. Constitution and Congress. A judge's responsibility is to interpret the laws, not to legislate from the bench. The Chairman. How about you, Judge? Judge Whittemore. Mr. Chairman, I would echo those comments in recognition of the separation of powers doctrine the Founders intended to apply, and that is the strength of our Union. The Chairman. All right. Under what circumstances do you believe it appropriate for the Federal court to declare a statute enacted by Congress unconstitutional? Judge Fuentes. It is a very rare occasion, Mr. Chairman. Rarely will a Federal court declare a statute unconstitutional. A judge is required to apply all existing precedent to the issue that is presented. Only in the clearest and most compelling circumstance would a judge declare a statute of the Congress unconstitutional because we have to be mindful that the Congress represents the will of the people. That is entitled to great respect and deference. The Chairman. Judge Whittemore. Judge Whittemore. Such a statute would come clothed with the presumption of constitutionality, and that is the starting mark. And if the language of that statute is clear, there would be no occasion to declare it unconstitutional. Precedent from case law teaches us as judges and as lawyers that there are constitutional challenges to many enactments of Congress and the various State legislatures. And when those issues are presented to judges, we are duty-bound to apply that analysis, depending on the particular statute. But it starts with the presumption of constitutionality as an expression of the will of the people. The Chairman. OK, now, the Supreme Court precedents are binding on all lower courts, and the circuit courts of appeals precedents are binding on the district courts withinthat particular circuit. Now, are both of you committed to following the precedents of the higher courts and following them faithfully and giving them the full force and effect, even if you personally disagree with those precedents? Judge Fuentes? Judge Fuentes. I am committed and bound to following the precedent of the U.S. Supreme Court and the precedents of my circuit, yes. Judge Whittemore. Mr. Chairman, I likewise am committed to following the precedent of the eleventh circuit in my case, or if the Supreme Court has spoken, we are committed to following that precedent. And there is no room for a judge to assume a personal agenda if a higher court has spoken. The Chairman. All right. Now, 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--that is, hiring, promotions, layoffs--college admissions and scholarships awards, and the awarding of Government contracts. Judge Fuentes. Mr. Chairman, according to the U.S. Supreme Court in the case of Adarand v. Pena, race-based and gender- based classifications must be subjected to the strict scrutiny standard of review. Classifications involving race and gender can only be sustained if they are narrowly tailored to respond to a compelling State interest. And if I am privileged to serve on the Court of Appeals, that is the ruling that I will uphold. Judge Whittemore. Likewise, Mr. Chairman, I am familiar with the Adarand decision and the cases that are not only pending but have been decided based on gender restrictions. The strict scrutiny standard is the applicable standard to apply in any racial preference legislation, and the standard, as discussed by Judge Fuentes, is the correct standard and I agree with him and would follow it. The Chairman. Do either of you have any legal or moral beliefs which would inhibit you or prevent you from carrying out--from imposing or upholding a death sentence in any criminal case that might come before you as a Federal judge? Judge Fuentes. Mr. Chairman, the U.S. Supreme Court has spoken clearly on the subject. There is no constitutional bar to the imposition of the death penalty, and if I am privileged to serve, I will uphold that law. Judge Whittemore. Likewise, Mr. Chairman, I have nothing in my personal or professional background that would prevent me from following the law as promulgated by Congress and the precedents of the U.S. Supreme Court in that regard, imposing the death penalty. The Chairman. Thank you. Senator Torricelli, do you have any other questions. Senator Torricelli. Mr. Chairman, I don't have any questions, but maybe just a comment in wishing both Judge Whittemore and Judge Fuentes well and a successful career on the bench. Mr. Chairman, I have noted recently that the architect of American independence and our Nation's Constitution, Thomas Jefferson, upon becoming President attempted to eliminate the court of appeals as being superfluous. We no longer recognize it as such. It is a very important part of our system of justice. And I leave you with this simple observation: We count on you to be part of the system of justice to defend the American people from those who would victimize them, those on the streets, those who would steal or rob or hurt them, but also to protect them sometimes from the excesses of their own Government. As a Democrat, I sometimes have a different philosophy on this issue. But I believe that, like many of my Republican colleagues, the judiciary is an important bulwark against the excesses of Government. You are in the Government, but you are not of the Government. Your independence is the most critical aspect of your service in the judiciary. I trust the smallest, poorest, and most powerless of citizen standing before you will always be treated as the equal of the best financed and arrogant bureaucrat of the Federal Government seeking to impose his or her will on an individual citizen. We count on you for that. You know we expect you to protect citizens from each other. Sometimes your more important duty is to protect the citizen from their own government. And I hope and trust you will both remember that through your long service in the judiciary. Mr. Chairman, thank you very much, and thank you for holding this hearing. The Chairman. Thank you. I happen to believe that being a Federal judge is one of the highest callings in the world. It is a sacred calling because I believe that the courts have probably saved this Constitution more than any other branch of government. Congress has a tendency to kick it down the drain. As you can see, from time to time, it is the courts that have to pull it back and make sure that it continues. So what you are doing is extremely important. As a member of the Third Circuit Court of Appeals myself, I have a lot of respect for that court and naturally feel that you will make an excellent addition to that court. And I intend to support both of your nominations, and I hope we can get them through in this very difficult political year. But I think we will be able to. You are both very good men, and I just wish you the best. Make us proud when you get there and remember what you said here today because I will be watching. Judge Fuentes. Thank you, Mr. Chairman. Judge Whittemore. Thank you. The Chairman. OK; well, we are delighted to have you both here. We commend you and your families for being the good people that you are and setting the good example that you have and doing the things in your life and times that have qualified you to be in these positions. Like I say, I have a great deal of respect for the Federal judiciary, and we just wish you both the best. And we will move these nominations as quickly as I can. Judge Fuentes. Thank you, Mr. Chairman. Judge Whittemore. Thank you very much. The Chairman. Good to see you. 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With that, we will recess until further notice. [Whereupon, at 4:28 p.m., the committee was adjourned.] Questions and Answers ---------- Responses of Randolph D. Moss to Questions From Senator Smith Question 1. In your role as Assistant Attorney General, Office of Legal Counsel, what would you advise as the proper role for the Justice Department to take in mandating integrative goals for school districts to achieve specific levels of desegregation? Answer 1. The Office of Legal Counsel (OLD) exercises authority delegated to it by the Attorney General to give legal advice within the executive branch. OLC's responsibilities do not extend to setting enforcement policy. I have had no occasion in my employment at OLC to consider the extent to which integrative goals must be satisfied in order to desegregate a school district. If called upon for my legal advice regarding how to remedy racial segregation within a school district, however, I would follow the law as established by the courts. I have stressed in the past that ``[t]here is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case.' '' Note, Participation and Department of Justice School Desegregation Consent Decrees, 95 Yale L. J. 1811, 1826 (1986) (quoting Green v. County School Bd., 391 U.S. 430, 439 (1968)). Rather, each individual case will raise unique circumstances, requiring remedial flexibility. Id. at 1826-27. As the Supreme Court has recognized, however, in each case in which it is necessary to remedy a history of purposeful school segregation, the ultimate goal should be to dismantle the prior dual school system ``root and branch,'' and to ``fashion steps which promise realistically to convert promptly to a system without a `white' school and a `Negro' school, but just schools.'' Green, 391 U.S. at 438, 442. Question 2. Is desegregation still a problem in school districts and, if so, what cases are you currently working on with the Justice Department that impact the issue of school desegregation? Answer 2. Other components of the Department, and not OLC, set enforcement policy and litigate cases implicating school desegregation. I am not familiar with the details of the situation in any particular school district. I understand, however, that the Department, through its Civil Rights Division, currently participates as plaintiff, intervener, or amicus curiae in many school desegregation cases. Although OLC is not involved in desegregation litigation, it is possible that advice provided by the Office outside the context of litigation might indirectly affect such litigation. Question 3. In your role as Acting Assistant Attorney General, what are your current responsibilities and, if you are working on any cases currently, what are they? Answer 3. As Acting Assistant Attorney General for OLC, I provide advice--and I supervise attorneys in the Office in providing advice-- within the executive branch on a broadrange of statutory and constitutional questions. The specific responsibilities of OLC that I supervise include: preparing the formal opinions of the Attorney General; rendering informal opinions and legal advice to various government agencies; assisting the Attorney General in the performance of her functions as legal adviser to the President; reviewing and approving for form and legality all Executive orders and proclamations and all Attorney General orders; advising the Attorney General in connection with her review of decisions of the Board of Immigration Appeals; and consulting with the Director of the Office of Government Ethics regarding the development of policies, rules, regulations, procedures and forms relating to ethics and conflicts of interest, as required by section 402 of the Ethics in Government Act of 1978. The responsibilities of OLC generally do not extend to the conduct of litigation, although the Office does, when requested, provide legal advice that may relate to a matter in litigation and on occasion offers views to the litigation components regarding ongoing litigation. Responsibility for handling the litigation, however, generally remains with the litigating component. Indeed, during my time at the Justice Department, I have been ``on brief'' in only one case, Riley v. St. Luke's Episcopal Hospital, No. 97-20948 (5th Cir. en banc). In that case, the Department has intervened to defend the constitutionality of the qui tam provisions of the False Claims Act. The case is currently pending before the Court of Appeals for the Fifth Circuit. Question 4. You wrote a letter to the editor of the New York Times in 1986 analyzing the issues surrounding McCleskey v. Kemp in which you concluded that ``[the Court should be] quite sure that the degree of moral outrage felt by those involved in the legal process is not influenced by race before upholding the Georgia death penalty [law].'' In light of your writings in 1986, did you believe the death penalty was Constitutional under either the Equal Protection Clause or the Eighth Amendment? Answer 4. My 1986 letter to the editor on McCleskey focused on the issue of how the Supreme Court, in its equal protection analysis, should view the State of Georgia's argument that there is a qualitative difference between crimes committed against white victims and crimes committed against black victims, and that the former are more likely to provoke the community's ``moral outrage.'' The letter reflected my concern about the State's argument on this point. I believed that this particular rationale provides a dangerous basis for concluding that the death penalty is constitutional. In upholding the imposition of the death penalty in McCleskey against Eighth Amendment and equal protection challenges, the Supreme Court did not rely on the State of Georgia's argument on this issue. I fully accept the Court's conclusion that the imposition of the death penalty is not unconstitutional and would provide advice consistent with that conclusion. Question 5. Do you believe the death penalty is currently Constitutional under either the Equal Protection Clause or the Eighth Amendment? Answer 5. The Supreme Court has repeatedly upheld the constitutionality of the death penalty. In particular, the Court has held that imposition of the death penalty comports with the Eighth Amendment so long as the government establishes rational criteria to narrow the sentencer's judgment as to whether the death penalty should be imposed and permits the sentencer's consideration of any relevant mitigating evidence that could cause it to decline to impose the penalty. Similarly, the Court has rejected an equal protection challenge to the administration of the death penalty. I fully accept the Court's decisions on the constitutionality of the death penalty and would provide advice consistent with those decisions. Question 6. Do you have any moral beliefs that would disqualify you from advising the Justice Department to seek the death penalty? Answer 6. My moral beliefs would not disqualify me from advising the Justice Department on death penalty issues. I should note, however, that OLC currently has no role in reviewing or advising whether the Department should seek the death penalty in any particular case. Question 7. You testified before Congress on April 20, 1999, against the proposed Flag Desecration Constitutional Amendment. How do you feel about the issue of a Constitutional prohibition on Flag desecration? Answer 7. As I indicated in my April 20, 1999, testimony before the Senate Judiciary Committee, I wholeheartedly agree with Chairman Hatch's observation that: The American flag represents, in a way nothing else can, the common bond shared by a very diverse people. Yet whatever our differences of party, politics, philosophy, race, religion, ethnic background, economic status, social status, or geographic region, we are united as Americans. That unity is symbolized by a unique emblem, the American Flag. However, I do not support a constitutional amendment that would empower Congress to prohibit the physical desecration of the American flag. First, given the unique status of the American flag, and its widely shared reverence, there has been no outbreak of flag burning since the time the Supreme Court decided Texas v. Johnson and United States v. Eichman. Second, such an amendment would run counter to James Madison's admonition that amendments to the Constitution should be reserved for ``great and extraordinary occasions.'' Third, such an amendment would constitute the first time in our nation's history in which one of the individual liberties protected by the Bill of Rights would be limited, and would risk undermining the public's confidence that the Bill of Rights is permanent and enduring. Finally, such an amendment could create a legislative power of uncertain dimension to override the First Amendment and other constitutional guarantees. ______ Response of Randolph D. Moss to a Question From Senator Grassley Question 1. In testimony before the Intelligence Committee, you indicated that you believed it would be unconstitutional to allow government employees to communicate evidence of government misconduct to Congress without prior approval from the Executive branch if that evidence consisted of classified information. Please elaborate on this by describing all circumstances in which you believe that Congress cannot authorize government whistleblowers to communicate with Congress without prior approval of the Executive branch. Answer 1. I strongly support the view that government whistleblowers should be able to communicate evidence of government misconduct to Congress without prior approval of the executive branch and believe that the Constitution does not, in general, preclude or limit such disclosures. My testimony in 1998 before the Senate and House Intelligence Committees--which reflected the established position of the Department of Justice, as set forth in a 1989 Supreme Court brief--focused on a narrow exception to this general rule: that approval is necessary where disclosure of information could unduly compromise the President's ability to perform his constitutionally assigned duties. This testimony addressed classified national security and foreign affairs information, the field in which there is by far the greatest potential for such a compromise. Consistent with the Department of Justice's long-standing position on the need to avoid compromising the integrity of open criminal investigations, I also suggested that the legislation then pending before the House of Representatives appropriately recognized the need to protect vital law enforcement information. In contrast to this sort of particularly sensitive information, disclosure of the vast majority of executive branch information would not unduly interfere with the President's ability to discharge his constitutional duties and thus would not raise the constitutional concern raised in my testimony. Even with respect to the most sensitive information, I would anticipate that the circumstances in which the executive branch could appropriately limit or prevent disclosure would be extremely rare. Moreover, even in those extremely rare cases in which there might exist a basis for limiting or preventing such a disclosure, the whistleblower may not be precluded from contacting Congress about alleged misconduct in a manner that avoids disclosure of the most sensitive information. This will allow the Congress to raise with the executive branch the allegation of misconduct and the failure to permit complete disclosure, and would permit Congress to insist upon and obtain an accommodation of its need for information relating to alleged executive branch misconduct. Finally, I firmly believe that a disclosure may never be limited or prevented for the purpose of avoiding embarrassment or hiding misconduct. ______ Responses of Julio M. Fuentes 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. Any nominee for a federal judgeship should answer questions on any subject relevant to the nominee's qualifications and fitness for office. However, pursuant to ethical restrictions that apply to sitting judges and judicial nominees, the nominee should abstain from pre-judging an issue or rendering an advisory opinion in a constitutional issue that may come before the court. Question 2. 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 2. As a judge, I am bound by governing precedent. Thus, if confirmed, I am compelled to follow Casey, in which the Supreme Court held that some restrictions on abortion are permitted before the point of viability if those restrictions do not impose an undueburden. In Casey, the Supreme Court also recognized the governmental interest in preserving life. If confirmed, I will faithfully follow the Supreme Court's decision in Casey. Question 3. Do you agree with the legal analysis of the holding of the Supreme Court in Roe v. Wade. (410 U.S. 113 (1973)) that a woman has the right to terminate a pregnancy before fetal viability? Answer 3. The holding of the Court in Roe v. Wade, as refined by Casey, remains binding precedent. In Casey, the Supreme Court held that some restrictions on abortion are permitted before the point of viability as long as they do not impose an undue burden. If confirmed, I will faithfully apply the binding precedent in Casey. Question 4. I understand the Supreme Court's rulings 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 4. Because of ethical restrictions that apply to sitting judges and judicial nominees, I believe I should abstain from asserting a personal view on a matter that may actually be presented to me for review. I state unequivocally that if I were presented with a case involving abortion, I would decide the case on the basis of the facts and evidence presented and I would apply binding Supreme Court precedent. Question 5. Do you have any personal, moral or religious reservations about the death penalty? Answer 5. I have no personal, moral or religious reservations that would prevent me from upholding the constitutionality of the death penalty. In Gregg v. Georgia, the Supreme Court held the death penalty to be constitutional. If confirmed, I will faithfully apply the binding precedent in Gregg. Question 6. Do you believe that the death penalty is Constitutional? Answer 6. In Gregg v. Georgia, the Supreme Court upheld the constitutionality of the death penalty. If confirmed, I will faithfully follow the Supreme Court's decision in Gregg. Question 7. Do you believe that the Second Amendment to the Constitution of the United States protects an individual to keep and bear arms? Answer 7. The Second Amendment states: ``(a) well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,'' I am aware of no Supreme Court case that implicates the issue raised by your question other than U.S. v. Miller, (307 U.S. 174(1939)). If confirmed, I will look to the text of the Amendment as well as binding Supreme Court precedent in regards to the Second Amendment. Question 8. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 8. As a member of the Supreme Court, I would be very respectful of the doctrine of stare decisis and I would be very cautious about overruling a precedent of the Supreme Court. In Casey, the Court offered guidelines concerning when to overrule precedent; the Court should look to ``whether the rule has proven to be intolerable simply in defying practical workability; 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; whether related principals of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine: or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.'' If I were a Supreme Court Justice, I would consider overruling precedent of the Court only under these stated circumstances. Question 9. 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 9. A statute enacted by Congress represents the will of the people and is entitled to a presumption of constitutionality. In determining the validity of an act, legislative intent is often discerned from the plain meaning of the statute. If the language is ambiguous, I would then look to precedent of both the Supreme Court and my Circuit. Thereafter, legislative history, which includes Committee Reports and the testimony of elected officials, may be considered. However, when considering legislative history, the court should proceed with caution because the statements of one legislator do not necessarily represent the intent of the Legislature. ______ Responses of James Whittemore 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 who is a sitting judge may be prohibited by applicable judicial canons from answering questions which may be perceived as predicting how that judge would rule on a matter pending before that judge or which may be presented to that judge. While a judicial nominee may not ethically be able to directly answer a question about a Constitutional issue, the nominee may discuss the language of the Constitution and relevant Supreme Court precedent, as well as indicate the nominee's general familiarity with the Constitutional issues, if any, applicable to the question. Question 2. 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 2. As I understand it, while the Supreme Court has recognized that a state has a substantial interest in protecting potential human life throughout pregnancy, the Supreme Court has held that governmental regulations restricting the right to terminate pregnancy prior to fetal viability may not impose an undue burden on a woman's right to make fundamental reproductive decisions. If I am fortunate to be confirmed as a federal district court judge, I will follow Supreme Court precedent. Question 3. Do you agree with the legal analysis of the holding of the Supreme Court in Roe v. Wade, (410 U.S. 113 (1973)) that a woman has the right to terminate a pregnancy before fetal viability? Answer 3. As a sitting state judge and a nominee for the federal judiciary, I am committed to following Supreme Court precedent, including Roe v. Wade as modified by Planned Parenthood v. Casey, and as a trial judge, I do not have the prerogative to disagree with the Supreme Court's legal analysis. Question 4. I understand the Supreme Court's rulings 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 4. This question involves very serious considerations regarding the medical and legal concept of viability, as well as one's religious and moral beliefs. I am duty bound to follow Supreme Court precedent involving these issues. I have no personal beliefs which would prevent me from following any Supreme Court decisions in this regard. Question 5. Do you have any personal, moral or religious reservations about the death penalty? Answer 5. I have no personal, moral or religious reservations about the death penalty, and if I were fortunate to be confirmed as a District Court Judge, I would follow applicable Supreme Court precedent. Question 6. Do you believe that the death penalty is Constitutional? Answer 6. The Supreme Court has found the death penalty to be Constitutional, based in part on the language contained in the fifth Amendment. If I were fortunate to be confirmed, I would follow applicable Supreme Court precedent. Question 7. Do you believe that the Second Amendment to the Constitution of the United States protect an individual right to keep and bear arms? Answer 7. The Supreme Court has in United States v. Miller, 307 U.S. 174 (1939), discussed the historic duty of citizens to bear arms in readiness to preserve a well regulated militia. Its opinion recognized regulatory provisions ``touching the right to keep and bear arms'' but did not expressly address the question posed above. I have no personal beliefs which would prevent me from following any precedent on this issue. Question 8. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 8. The doctrine of stare decisis is an important component of judicial restraint. In numerous cases, the Supreme Court has set forth the very narrow circumstances under which it may overrule its own precedent. If I were a Supreme Court Justice, I would follow those standards. Question 9. 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 9. If a case requires the construction of statutory language, the analysis begins with the plain language of the statute which is the best expression of the will of the people. In applying or further construing applicable statutory language in a given case, a judge should next turn to a consideration of analogous case precedent from the Supreme Court or the Circuit Courts. In this process, particularly with regard to terms used in a statute but not defined within the statute, it can be helpful to review the testimony and debate leading to the passage of the act to ascertain the legislative intent. Since transcriptions of legislative debate are not always complete or accurate, a judge should be cautious in considering testimony and debate. NOMINATIONS OF RICHARD TALLMAN (U.S. CIRCUIT JUDGE); JOHN ANTOON, II, MARIANNE O. BATTANI, AND DAVID M. LAWSON (U.S. DISTRICT JUDGES) THURSDAY, MARCH 23, 2000 U.S. Senate, Committee on the Judiciary, Washington, DC. The committee met, pursuant to notice, at 3:22 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Strom Thurmond presiding. OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA Senator Thurmond. The committee will come to order. Today, we are conducting the eighth judicial nominations hearing of the 106th Congress. I welcome the distinguished members of the Senate who are present to introduce particular nominees and I welcome the nominees and their families. Judicial nominations hearings are among the most important duties of this committee. A Federal judgeship is not only a position of great power, it is also one of great responsibility to the people of this Nation and to the Constitution. I wish to proceed in the following manner. After opening statements, I would like for the members who are present to introduce their nominees. They will constitute the first panel. The second panel will consist of these nominees: Richard Tallman, of Washington, to be U.S. Circuit Judge for the Ninth Circuit of Appeals; Judge John Antoon, of Florida, to be U.S. District Judge for the Middle District of Florida; Marianne Battani, of Michigan, to be U.S. District Judge for the Eastern District of Michigan; and David Lawson, of Michigan, to be U.S. District Judge for the Eastern District of Michigan. I would like to include in the record a statement from Senator Leahy. [The prepared statement of Senator Leahy follows:] Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the State of Vermont This afternoon the Judiciary Committee holds only its second confirmation hearing for judicial nominees this year. I thank the Chairman for proceeding today with the four outstanding nominees who appear before us: Richard Tallman, nominated to the Ninth Circuit Court of Appeals; Judge John Antoon II, nominated to the District Court in the Middle District of Florida; Judge Marianne Battani, nominated to the District Court in the Eastern District of Michigan; and David Lawson, also nominated to the District Court in the Eastern District of Michigan. There are currently 76 vacancies on the federal courts across the country, and there are eight more on the horizon. Had Congress authorized the additional judgeships that the Judicial Conference has proposed over the past several years, judicial vacancies would currently number over 130. The Senate has, at long last, acted on some of the nominees from years past. Just two weeks ago today the Senate confirmed Judge Richard Paez and Marsha Berzon to the Ninth Circuit. Judge Paez was first nominated over four years ago; Ms. Berzon over two years ago. The debate took up three days on the Senate floor and required us to end filibusters against these nominees with cloture votes. We then had to turn back a motion to postpone indefinitely consideration of the Paez nomination, a motion without precedent in Senate history with regards to a judicial nomination on which cloture had been invoked. Still, to date the Senate has only confirmed seven judges all year, and six were nominations carried over on the Senate Executive Calendar from last session and that could have been acted on last year. Unfortunately, the Senate has not built upon the progress we had made filling judicial vacancies following the Chief Justice's remarks in his 1997 report on the state of the federal judiciary. Last year, faced with 100 federal judicial vacancies, the Senate confirmed only 34 new judges. I have challenged this Committee and the full Senate to return to the pace we met in 1998 when we held 13 confirmation hearings and confirmed 65 judges. That approximates the pace in 1992, when a Democratic majority in the Senate acted to confirm 66 judges during President Bush's final year in office. There is a myth that judges are not traditionally confirmed in Presidential election years. That is not true. Recall that 64 judges were confirmed in 1980, 44 in 1984, 42 in 1988 when a Democratic majority in the Senate confirmed Reagan nominees and, as I have noted, 66 in 1992when a Democratic majority in the Senate confirmed 66 Bush nominees. Our federal judiciary cannot afford another unproductive election year session like 1996 when a Republican majority in the Senate confirmed only 17 judges. These 17 confirmations in 1996 were an anomaly that should not be repeated. Since then we have had years of slower and lower confirmations and heavy backlogs in many federal courts. By this time in 1992, the Committee had held 4 confirmation hearings for judicial nominees and 19 judges had been confirmed. By this date in 1994, the Committee had held 4 hearings, and 15 judges had been confirmed. By this time in 1998, the Committee had held 3 hearings and 12 judges had been confirmed. By comparison, we remain leagues behind that pace. The vacancies on the courts of appeals around the country are particularly acute. The Ninth Circuit continues to be plagued by multiple vacancies. I am glad to see Mr. Tallman included in this hearing. We should also be making progress on the nominations of Barry Goode, Judge Johnnie B. Rawlinson and James E. Duffy, Jr. Representing the State of Vermont, I am acutely aware that there is no one on the Ninth Circuit from the State of Hawaii. I know that federal law requires that ``there be at least one circuit judge in regular active service appointed from the residents of each state in that circuit,'' 28 U.S.C. 44(c), and would like to see us proceed to confirm each of these outstanding nominees. The Fifth Circuit continues to labor under a circuit emergency declared last year by its Chief Judge. We should be moving the nominations of Alston Johnson and Enrique Moreno to that Circuit to help it meet its responsibilities. This week I received a copy of a letter from the Chief Judge of the Sixth Circuit concerning the multiple vacancies plaguing that Circuit. Chief Judge Merritt was disturbed by a report that this Committee would not be moving any nominees for the Sixth Circuit this year. He wrote: The Sixth Circuit Court of Appeals now has four vacancies. Twenty-five percent of the seats on the Sixth Circuit are vacant. The Court is hurting badly and will not be able to keep up with its work load due to the fact that the Senate Judiciary Committee has acted on none of the nominations to our Court. One of the vacancies is five years old and no vote has ever been taken. One is two years old. We have lost many years of judge time because of the vacancies. By the time the next President is inaugurated, there will be six vacancies on the Court of Appeals. Almost half of the Court will be vacant and will remain so for most of 2001 due to the exigencies of the nomination process. Although the President has nominated candidates, the Senate has refused to take a vote on any of them. Our Court should not be treated in this fashion. The public's business should not be treated this way. The litigants in the federal courts should not be treated this way. The remaining judges on a court should not be treated this way. The situation in our Court is rapidly deteriorating due to the fact that 25% of the judgeships are vacant. Each active judge of our Court is now participating in deciding more than 550 cases a year--a case load that is excessive by any standard. In addition, we have almost 200 death penalty cases that will be facing us before the end of next year. I presently have six pending before me right now and many more in the pipeline. Although the death cases are very time consuming (the records often run to 5000 pages), we are under very short deadlines imposed by Congress for acting on these cases. Under present circumstances, we will be unable to meet these deadlines. Unlike the Supreme Court, we have no discretionary jurisdiction and must hear every case. The Founding Fathers certainly intended that the Senate ``advise'' as to judicial nomination, i.e., consider, debate and vote up or down. They surely did not intend that the Senate, for partisan or factional reasons, would remain silent and simply refuse to give any advice or consider and vote at all, thereby leaving the courts in limbo, understaffed and unable properly to carry out their responsibilities for years. Judge Merritt, I hear your plea. I, too, urge the Committee and the Senate to go to work on the nominations of Helene White, Kathleen McCree Lewis, and Kent Marcus 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 of the federal courts across the country. I look forward to hearing from these outstanding nominees today and urge all Senators to join us to make the federal administration of justice a top priority for the Judiciary Committee and for the Senate this year. Senator Thurmond. Senator Murray, do you want to introduce a nominee? Senator Murray. Senator Gorton, the senior Senator, should go first. That would be appreciated. Senator Thurmond. Do you want him to go first? Senator Murray. Yes. Senator Thurmond. That suits me. Go ahead. STATEMENT OF HON. SLADE GORTON, A U.S. SENATOR FROM THE STATE OF WASHINGTON Senator Gorton. Thank you. Mr. Chairman, it is with great pleasure that Senator Murray and I appear before you to recommend for the Ninth Circuit Court of Appeals Mr. Richard Tallman of Seattle. Senator Murray and I have developed a relationship that I think is as constructive or more constructive than any in the U.S. Senate in putting together a bipartisan committee to make selections to submit to us for a final choice. The result has been, in my opinion, a series of highly qualified men and women of fine legal standing, generally speaking, non-controversial in nature, for these positions. In addition to the personal relationship that Senator Murray and I have created, we have a highly constructive arrangement between the two of us on the one hand and the White House and its appointments on the other, and it is through that system that we bring Mr. Tallman before you here today. His name was submitted to the two of us, ironically, in an earlier competition for a District Court judgeship and another person was picked. The opportunity, however, that arose for the Ninth Circuit Court of Appeals, to choose the other of two very highly qualified candidates, was a joy and a delight to me and I am sure to Senator Murray, as well. I do not believe that he was an individual who was known personally to either of us before this procedure began, but he is a tribute to the quality of that process. He has broad bipartisan support in the State of Washington and its legal community, from the Attorney General of the State, my successor, who is a Democrat, two former U.S. Attorneys for Western Washington, the Federal public defender from Western Washington, the President of the Ninth Circuit District Judges Association, and the Federal Bar Association in the Western District of Washington. For an extended period of time, he was a partner in one of Seattle's largest law firms, Bogle and Gates, but recently, he has been a principal in a small firm that specializes in white collar criminal defense. He has been an Assistant U.S. Attorney for the Western District of Washington and has been a special assistant city attorney, deputy prosecuting attorney, and Special Assistant Attorney General from the State of Washington. He has taught and lectured extensively to groups of lawyers and non-lawyers on a wide range of legal topics. His civic career has been equally noteworthy, he has participated in many bar associations and has himself worked on the selection of judges for State court positions. He is an Executive Board member of the Chief Seattle Council of the Boy Scouts of America, and I guess I note he is the third recent judicial nominee from our State who has participated extensively with either the Boy Scouts or with the Girl Scouts, though I do not think that either Senator Murray or I require this as an absolute prerequisite for selection. I could not recommend a candidate to you more unreservedly. He will be a fine addition to the Federal bench and I hope that the Judiciary Committee will be able to act both promptly and favorably on his nomination. Senator Thurmond. Senator Murray. STATEMENT OF HON. PATTY MURRAY, A U.S. SENATOR FROM THE STATE OF WASHINGTON Senator Murray. Thank you very much, Mr. Chairman. It really is my pleasure to be here with Senator Gorton today to introduce Dick Tallman, who is a distinguished lawyer and a former U.S. attorney to this committee, and I am pleased to recommend him and urge the Senate confirm him as a Circuit Judge for the Ninth Circuit. I also want to take a moment to recognize his wife, Cynthia, who is here with him today and is an outstanding member of the community, as well. Mr. Chairman, it is a delight to again be here with Senator Gorton as we have worked through the process of making sure that we fill our judicial nominees in a manner that is best for our State and our country and I thank him for his continued work with me to put forward, I think, some of the best nominees that this Senate has confirmed over the last several years. So I appreciate his work and we are delighted to be here together today to present Dick Tallman to you. Both Senator Gorton and I assisted the President in choosing him and he possesses strong support from a diverse group of attorneys and community leaders at home in Washington State. As Senator Gorton said, Dick Tallman began his legalcareer as a law clerk for U.S. District Judge Morell Sharp in Seattle. He then moved on to work successfully as an attorney for the Justice Department, and in 1980, he rose to become Assistant U.S. Attorney for the Western District of Washington. After 3 years as Assistant U.S. Attorney, he went on to an admirable career in private practice, specializing in complex commercial litigation. He also spends his spare time supporting a number of civic activities and teaching law, as Senator Gorton mentioned. Outside of his many professional credentials that have been presented to you, I have had the opportunity to meet and talk with him many times and I just want to share with my colleagues how impressed I have been with his professionalism and his decency. It is my pleasure to introduce to this committee a great lawyer who I believe will make an exceptional Federal judge and I urge this committee to approve his nomination and I hope we have a confirmation on the floor of the Senate as soon as possible. Thank you very much, Mr. Chairman. Senator Thurmond. Thank you very much. Senator Levin. STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE OF MICHIGAN Senator Levin. Mr. Chairman, thank you for convening this hearing. It was a real privilege to recommend to the President two nominees who went through a very long screening process of a cross-section of people back in the State of Michigan who were recommended from about 60 applicants, six finalists from whom these two were chosen and were recommended by me to the President of the United States. It is a real honor to be here with Spence Abraham, my colleague from Michigan, today to present the two nominees to this committee. The first is Marianne Battani, who is a circuit court judge now in Michigan. She has been a circuit court judge since about 1982 and before that was a judge in the common pleas court in the District Court in Michigan. She is known for her judicial demeanor, and I asked her if she would mind if I read a very brief letter that she received not too long ago from someone who was in her courtroom, because I think it represents everything that she is and what we really want in a judge, and it is very brief. This is what this person wrote to her. ``I was a witness in your courtroom last week. While I have not appeared in a lot of courts, I have been exposed to a few. I was struck by a different atmosphere in your court compared to the others I have been in. I have had a hard time finding the precise description, but warm, inviting, caring, concerned, and involved are a few of the terms that come to mind. Your manner quickly put me at ease. I had the sense that you were there to help all of us get this process along, not as a referee to just make sure the rules were followed. It was a refreshing experience. It raised my respect for the judiciary a notch or two. Thanks for what you do.'' She is accompanied here today by her daughter, Amanda, by her mother, Zelinda, and by her sister, Susan, and she comes extraordinarily well recommended. The Metropolitan Detroit Bar Association recommended her as outstanding and Lawyers Weekly in Michigan said that she is one of Michigan's most respected jurists. Our other nominee is David Lawson, and he is a true superstar as a litigator, as a teacher. He has had 20 years on the faculty of the Michigan Judicial Institute, where he teaches judges and teaches lawyers things like procedure and evidence, and in his private practice, he has had an extraordinary amount of experience in the courts of the State of Michigan and the Federal courts. Some of the comments which I received when I was considering these nominees about David Lawson are as follows. ``He stands at the top of the class academically, professionally, ethically, and personally.'' Another comment, ``He demonstrates the kind of even and balanced temperament which one would seek and hope for in a judge, a willingness to listen, a passion for justice, and a sense of compassion for those engaged in the system.'' Another comment, ``Very knowledgeable in the law, an expert in the rules of evidence.'' Another comment, ``Demonstrates the highest level of integrity and ethics.'' David Lawson is here with his family and a number of friends, as well, and I will not introduce them all but just a few: His wife, Janet, who also on her own is professionally the head of volunteer services for United Way, their sons---- Senator Thurmond. Would you like for any of them to stand or not? Senator Levin. That would be very nice. Thank you very much. Senator Thurmond. Call the names and let them stand. Senator Levin. Why do we not have the Lawson family all stand, and then I will go back to the Battanis. Thank you, Mr. Chairman. If the Lawson family, David, with your wife, Janet, would stand, their three sons, Daniel, Ryan, and Kyle, and their daughter-in-law, Lisa, and Dorothy Lawson, David's mother, is here. Unfortunately, his dad, Jim, could not be here due to illness. They have about nine or ten more family members. Perhaps you could all stand up now at one time and just show the kind of support this nominee has here, Mr. Chairman. By comparison, Judge Battani's group is a lot smaller, and I hope that you will not read too much into that, Mr. Chairman. I am wondering, Judge Battani, if you and your daughter and your mother and your sister might also stand. Thank you, and thank you very much Mr. Chairman. Senator Thurmond. It is quality rather than quantity. [Laughter.] Senator Abraham. STATEMENT OF HON. SPENCER ABRAHAM, A U.S. SENATOR FROM THE STATE OF MICHIGAN Senator Abraham. Thank you very much, Mr. Chairman. Let me just add to what Senator Levin has already said. We are very pleased today to jointly present these two nominees to the committee. I also want to publicly acknowledge Senator Levin's approach to the process. I think in his selection of these two individuals to recommend to the White House, he not only observed, I think, the appropriate and highest level of scrutiny in terms of the committee that made recommendations in its efforts, but also the involvement and consultative relationship with our office and with me and I appreciate that very much, Senator. I am very happy to join him in introducing Judge Battani and Mr. Lawson and their family members who are here today. I think it is a privilege to be part of this process because I think they are both highly qualified individuals who the President has nominated to serve as judges to the U.S. District Court for the Eastern District of Michigan. Judge Battani, as you have heard, is from Michigan. She was born in Detroit. I believe she has lived her entire life in Michigan. After receiving her bachelor's degree from the University of Detroit, she went on to excel at the Detroit College of Law. After law school, she worked as an associate attorney for a small general practice firm and then started her own practice. For the next 7 years, she mainly practiced family law and custody and support issues. Then in 1981, she was appointed to the common pleas court for the City of Detroit by Governor Miliken, a Republican governor. That court has jurisdiction over civil cases with damages estimated to be under $10,000. Since 1982, she has served as a judge on the Wayne County Circuit Court, our trial court, the highest trial court. Lawyers I have talked to, whether they have won or lost before her, have uniformly praised Judge Battani's excellent preparation as well as her craftsman-like approach to her job. These are not the easiest qualities to demonstrate on a court such as this one which has such a high volume of cases, but she has demonstrated it. She has also demonstrated her skills as an administrator. Her work on the development of the individual docket system in the Wayne County Circuit Court reduced the median time for trial from 43 months to 28 months. Only 2 percent of the cases in the entire court exceed the 2-year American Bar Association time standard. In my judgment, Mr. Chairman, that is an extraordinary achievement and one that definitely deserves this committee's favorable attention. Finally, despite the press of judicial business and family commitments, Judge Battani has also been an active member of the State bar, as well as a number of community organizations with particular focus on work with domestic violence victims and disadvantaged children. She also serves on the board of the Detroit College of Law at Michigan State University and other organizations like it. For those reasons, I am delighted to be here today with Judge Battani and to thank the chairman and the committee for holding this hearing for her nomination so promptly. We appreciate that. David Lawson was also born in Detroit and spent most of his life in Michigan. Mr. Lawson graduated magna cum laude from the University of Notre Dame, which I think we can let slide. I went to Michigan State, Mr. Chairman. There are some occasional rivalries there. He then went on to the Wayne State University Law School. He was first in his class, which I think we can also let slide. I will not mention my class rank in law school here today. But in law school, he clerked for the Honorable John N. O'Brien in the Michigan Circuit Court. After graduating from law school, he clerked for the Honorable James L. Ryan, who was then on the Michigan Supreme Court and is now on the Sixth Circuit Court of Appeals. For the next 8 years, Mr. Lawson was an associate attorney in a general practice firm. He concentrated initially on criminal defense law and evolved over the years to include civil defense and plaintiff trial and appellate litigation, with an emphasis on medical malpractice and professional negligence. During this time, he also served 2 years as Special Assistant Attorney General, as a special prosecutor for the Oakland County one-man grand jury. From 1985 to 1994, he was a partner in a Detroit firm. He specialized there in civil and criminal defense cases and commercial litigation. From 1991 to 1993, he also served as Special Livingston County Prosecuting Attorney. Since 1994, he has been a member of the Clark Hill law firm, specializing again in litigation. He has written numerous practice-related law review articles as well as course materials for seminars. He, too, has been an active member of the community. For years, he has coached youth soccer, baseball, and basketball teams. He has volunteered at local shelters and helped raise money for the Coalition on Temporary Shelters. He is currently serving as a member of the Board of Directors of the Oakland County, Michigan Bar Association and the Criminal Defense Attorneys of Michigan. Mr. Lawson's wide range of legal experience and knowledge gives him, in my view, a unique perspective of the law and these are the qualities we need in our judges. I am proud of his work, as I am of Judge Battani's, and for all of these reasons, I am delighted to be here today to present Judge Battani and Mr. Lawson to the committee and to urge the committee to move swiftly in consideration of their nominations. I just want to conclude by saying this, that I have a group of lawyers in Michigan who advise me on nominations and all of their reviews of both Judge Battani and Mr. Lawson were uniformly positive. This, Mr. Chairman, is a rare occurrence and I think it speaks for itself. So I very much appreciate the time today, the speed with which the hearing has been set, and I hope a quick and speedy conclusion to the consideration of these nominations by the full committee. Mr. Chairman, thank you. Senator Thurmond. Thank you very much. Senator Graham. STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF FLORIDA Senator Graham. Thank you very much, Mr. Chairman. It is a great honor to have these judicial nominees heard by the Judiciary Committee under your chairmanship. You have for many decades been associated with the work of this Judiciary Committee and have had the opportunity to personally participate in the selection of a large percentage of the current Federal judiciary, and I know that these nominees will be very appreciative of the historic significance of having you chair their confirmation hearing. Senator Mack and I also want to thank you, Mr. Chairman, and also to Chairman Hatch for the prompt and expeditious treatment that you have accorded the thorough review of Honorable John Antoon. Judge Antoon has been nominated by the President for a vacancy in the Middle District of Florida. Senator Mack unfortunately could not be with us this afternoon and has asked me on his behalf, with your permission, to submit into the record his statement supporting Judge Antoon's nomination. Senator Thurmond. Without objection. [The prepared statement of Senator Mack follows:] Prepared Statement of Hon. Connie Mack, a U.S. Senator From the State of Florida Mr. Chairman and members of the Committee, I am delighted to be here today to recommend John Antoon for confirmation. But before I discuss the distinguished career of John Antoon, I would like to thank this Committee for its responsiveness to the needs of the Florida judiciary. At this moment, the State of Florida has seven vacancies in its federal judicial system. Both Senator Graham and I are eager to work with the Committee this session to confirm qualified candidates to fill these vacancies and ease the pressure on Florida's courts. At the present time, six of the seven vacant judgeship positions are in the Middle District of Florida. It is an honor to recommend Judge Antoon for confirmation to serve in the Middle District. Since 1995, Judge Antoon has served as an appellate court judge for the Florida's Fifth District Court of Appeal. Prior to sitting as an appellate court judge, Judge Antoon served 10 years as a trial court judge. In addition, Judge Antoon has also spent 14 years on the other side of the bench, as an assistant city attorney, a public defender, and as an attorney with his own civil and criminal practice. Finally, it should also be noted that Judge Antoon has assisted the United States military by serving in the Army Reserve for six years. In addition to his career achievements, Judge Antoon has taken time out of his busy schedule to give back to the community by serving on the Board of Directors of the Brevard Legal Society and on the Board of Directors for the Haven, which is a shelter care facility for dependent children. Florida Today, a local Florida paper, has twice written articles about the excellent credentials of Judge Antoon. A December 3, 1999, article stated that ``the Senate Judicial Committee should waste no time in confirming Antoon for the federal judgeship.'' A March 4, 2000, editorial stated ``[t]hose who know him say John Antoon is one of the finest people they've ever know. They also say he is one of the finest judges who has sat on the bench * * * A big job, but Antoon, who has cemented a reputation as a peerless juror, is the right person for it.'' I have carefully examined Judge Antoon's qualifications and find him to be a highly qualified nominee. I am confident that, if confirmed, Judge Antoon will bring to the federal bench an outstanding background which will serve to maintain the integrity of our legal system and provide justice for those who come before him. Senator Graham. Mr. Chairman, I am honored to introduce to the committee not only an outstanding jurist from Florida, but also a jurist with a very large and supporting family, and some of those family members are with him today. First, if I could ask Judge John Antoon if you would please stand, Judge. The Judge is joined by his wife, Nancy, and their vivacious 3\1/2\- year-old daughter, Molly. Molly is so vivacious she is outside. And the Judge's mother, Ms. Elva Antoon, the Judge's brother, David, who is a pilot with United Airlines from Dayton, OH, and his daughter, Emily, also join Judge Antoon. Thank you very much. Mr. Chairman, as I stated, Judge Antoon would fill a vacancy in the U.S. Middle District of Florida. This vacancy was created when Judge G. Kendall Sharp took senior status, effective January 1. As you know, the Middle District of Florida is one of the busiest districts in the Federal system in terms of the number and complexity of its cases. Therefore, I again am particularly appreciative that you have expedited the consideration of Judge Antoon to fill this vacancy. The process that we have used is as we have in the past. An independent, nonpartisan screening committee interviewed the candidates for this vacancy, and I commend Judge Antoon to your attention. Mr. Chairman, I know that you have admonished the presenters to brevity, so I would like to ask that the full statement which I have be included in the record and I would like to summarize it for your attention. It is illustrative of the regard in which Judge Antoon is held in Florida that it was difficult for him to be with us today. The reason for that difficulty is that he has been participating as one of the prime professors in the school which is conducted by the Florida judiciary for new judges. The fact that he was selected to be one of the professors for new judges is an indication of the extremely high regard in which he is held by members of the judiciary and the bar in Florida. Summarizing his long and distinguished career, the Judge served 10 years as a circuit court judge, until 1995, when he was elevated to Florida's Fifth District Court of Appeals, the interim appellate body in our State. He is a graduate of Florida Southern College in Lakeland. He earned his law degree from Florida State University in 1971. He is a man who has continued his commitment to education, having received a Master's of Science from the Florida Institute of Technology in 1993. Mr. Chairman, as an indication of his strong community support, I would like to ask for inclusion in the record an editorial from the Florida Today newspaper of March 4 of this year commending Judge Antoon and urging his prompt confirmation. Senator Thurmond. Without objection, so ordered. Senator Graham. Mr. Chairman, Senator Mack and I are of the view that prospective judges benefit from a variety of experiences and we submit that Judge Antoon meets that standard. He is prepared to be an outstanding member of the Federal judiciary. He will bring credit to the President who has nominated him and to this Senate, which we hope will soon confirm him. Again, Senator Mack and I express our thanks for your consideration. We look forward to continuing to work with this committee towards our shared goal of a qualified judiciary for America. Thank you. Senator Thurmond. Thank you very much. [The prepared statement and information of Senator Graham follow:] Prepared Statement of Senator Bob Graham Mr. Chairman, and members of the Committee, Senator Mack and I thank you for scheduling this hearing and for the Committee's prompt and thorough review of The Honorable John Antoon (Ann-Tone) of the Middle District of Florida. Judge Antoon is joined by members of his family: His wife, Nancy, their three-and-a-half year old daughter, Molly. The judge's mother, Elva Antoon (Ann-Tone), and brother, David, a pilot with United Airlines, from Dayton, Ohio, and his daughter, Emily. Our colleague, Senator Mack, could not be with us this afternoon. On his behalf, I respectfully ask the Chair for permission to submit into the record his statement supporting this nomination. Thank you. Mr. Chairman, I am honored to introduce to the Committee an outstanding jurist from Florida: The Honorable John Antoon II. Judge Antoon would fill a vacancy created when U.S. District Court Judge G. Kendall Sharp of Orlando took senior status, effective January 1. An independent, non-partisan screening committee interviewed candidates and commended Judge Antoon to my attention. Judge Antoon is one of the most experienced and respected jurists in our State. On a personal note, I would point out that Judge Antoon had to scramble to get to Washington this week, in part because he was in Tallahassee, Florida, which does not have the best airline connections. Judge Antoon is not based in Tallahassee, but the reason for his visit to Tallahassee reflects his standing in the legal profession and the judiciary. Mr. Chairman, the reason Judge Antoon was in Tallahassee was to teach new judges about the profession of serving as a Judge. Judge Antoon is held in such high regard by his profession that he is called upon as a mentor, teacher, and leader of our future judges. After serving 10 years as a trial judge in our state court system, Judge Antoon was elevated--in 1995--to Florida's 5th District Court of Appeals, based in Daytona Beach. After graduating from Florida Southern College in 1968, John Antoon earned his law degree from Florida State University in 1971. (Florida State has gone on to win two national football championships since then). A man who values education greatly, Judge Antoon earned a Masters of Science from the Florida Institute of Technology in 1993. Please note that he has also earned editorial support. Florida Today, alluding to the many challenges facing the growing Middle District, states with confidence: ``A big job, but Antoon, who has cemented a reputation as a peerless juror, is the right person for it.'' I'd respectfully request that this Florida Today editorial entitled ``Senate: Approve Antoon.'' be included in the record. Mr. Chairman, we share the view that prospective judges benefit from varies experiences, and I submit that Judge Antoon's background meets that standard. He is a veteran, having served in the United States Army. He has worked as an assistant public defender and served as a member of the Board of Directors of the Legal Aid Society. He is a skilled teacher with experience at a variety of colleges, and, as I mentioned earlier, a trainer for new judges. Mr. Chairman, this nominee is qualified to serve our Nation as a federal judge, and I respectfully request your thorough and prompt review so he can begin that service as soon as possible. Again, Senator Mack and I express our thanks for your consideration, and we look forward to continuing to work with this Committee toward our mutual goal of a qualified judiciary. Thank you. [GRAPHIC] [TIFF OMITTED] T3031A.156 Senator Thurmond. I ask that each nominee stand at the witness table and raise your right hand and I will administer the oath. Do you swear that the testimony you shall give in this hearing shall be the truth, the whole truth, and nothing but the truth, so help you, God? Mr. Tallman. I do. Judge Antoon. I do. Judge Battani. I do. Mr. Lawson. I do. Senator Thurmond. Thank you. If any of you have any opening statements or would like to introduce any family or friends who are with you today, please feel free to do so at this time. TESTIMONY OF RICHARD TALLMAN, OF WASHINGTON, TO BE U.S. CIRCUIT JUDGE FOR THE NINTH CIRCUIT Mr. Tallman. Thank you, Mr. Chairman. I would like to introduce my wife, Cynthia Tallman, if she would stand. I would also like to introduce Robin Taub, who practiced law with me in Seattle, and two of my former partners from the firm of Saltzman and Stevens who practiced with me at Bogle and Gates, Gary Stevens and Ruth Tiger. Senator Thurmond. Thank you very much. Mr. Tallman. Mr. Chairman, I regret that my mother, Jean Tallman, could not be with us today, but I know she is here in spirit. Thank you. [The biographical information and questionnaire of Mr. Tallman follows:] [GRAPHIC] [TIFF OMITTED] T3031A.157 [GRAPHIC] [TIFF OMITTED] T3031A.158 [GRAPHIC] [TIFF OMITTED] T3031A.159 [GRAPHIC] [TIFF OMITTED] T3031A.160 [GRAPHIC] [TIFF OMITTED] T3031A.161 [GRAPHIC] [TIFF OMITTED] T3031A.162 [GRAPHIC] [TIFF OMITTED] T3031A.163 [GRAPHIC] [TIFF OMITTED] T3031A.164 [GRAPHIC] [TIFF OMITTED] T3031A.165 [GRAPHIC] [TIFF OMITTED] T3031A.166 [GRAPHIC] [TIFF OMITTED] T3031A.167 [GRAPHIC] [TIFF OMITTED] T3031A.168 [GRAPHIC] [TIFF OMITTED] T3031A.169 [GRAPHIC] [TIFF OMITTED] T3031A.170 [GRAPHIC] [TIFF OMITTED] T3031A.171 [GRAPHIC] [TIFF OMITTED] T3031A.172 [GRAPHIC] [TIFF OMITTED] T3031A.173 [GRAPHIC] [TIFF OMITTED] T3031A.174 [GRAPHIC] [TIFF OMITTED] T3031A.175 [GRAPHIC] [TIFF OMITTED] T3031A.176 [GRAPHIC] [TIFF OMITTED] T3031A.177 [GRAPHIC] [TIFF OMITTED] T3031A.178 [GRAPHIC] [TIFF OMITTED] T3031A.179 [GRAPHIC] [TIFF OMITTED] T3031A.180 [GRAPHIC] [TIFF OMITTED] T3031A.181 [GRAPHIC] [TIFF OMITTED] T3031A.182 [GRAPHIC] [TIFF OMITTED] T3031A.183 [GRAPHIC] [TIFF OMITTED] T3031A.184 [GRAPHIC] [TIFF OMITTED] T3031A.185 [GRAPHIC] [TIFF OMITTED] T3031A.186 [GRAPHIC] [TIFF OMITTED] T3031A.187 [GRAPHIC] [TIFF OMITTED] T3031A.188 [GRAPHIC] [TIFF OMITTED] T3031A.189 [GRAPHIC] [TIFF OMITTED] T3031A.190 [GRAPHIC] [TIFF OMITTED] T3031A.191 [GRAPHIC] [TIFF OMITTED] T3031A.192 [GRAPHIC] [TIFF OMITTED] T3031A.193 [GRAPHIC] [TIFF OMITTED] T3031A.194 [GRAPHIC] [TIFF OMITTED] T3031A.195 [GRAPHIC] [TIFF OMITTED] T3031A.196 [GRAPHIC] [TIFF OMITTED] T3031A.197 [GRAPHIC] [TIFF OMITTED] T3031A.198 [GRAPHIC] [TIFF OMITTED] T3031A.199 [GRAPHIC] [TIFF OMITTED] T3031A.200 [GRAPHIC] [TIFF OMITTED] T3031A.201 [GRAPHIC] [TIFF OMITTED] T3031A.202 [GRAPHIC] [TIFF OMITTED] T3031A.203 [GRAPHIC] [TIFF OMITTED] T3031A.204 [GRAPHIC] [TIFF OMITTED] T3031A.205 [GRAPHIC] [TIFF OMITTED] T3031A.206 [GRAPHIC] [TIFF OMITTED] T3031A.207 TESTIMONY OF JOHN ANTOON, II, OF FLORIDA, TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA Judge Antoon. Mr. Chairman, I want to thank you for having this hearing today. I want to publicly thank Senators Graham and Mack for the courtesy and support they have given me and my family through this process. I especially want to thank Senator Graham's staff, who has helped us with a very tired 3\1/2\- year-old who left Florida very early this morning. I also want to publicly thank my family for the support they have shown me and thank those who are here for making the trip. Thank you, sir. 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BATTANI, OF MICHIGAN, TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN Judge Battani. Senator, I would like to thank you for holding these hearings for us today, and I also would like to thank the two Senators from Michigan, Senator Carl Levin and Senator Spencer Abraham, who have been most supportive to me. In addition to my mother, my daughter, and my sister whom you have met here today, I would like to recognize my two other sisters, Linda Powell and Bonnie Gray, who were unable to be here with me. Thank you. 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LAWSON, OF MICHIGAN, TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN Mr. Lawson. Mr. Chairman, thank you for chairing this meeting. It is an honor to be here. Likewise, I would like to thank Senator Levin and Senator Abraham for the support that they have shown. I would also like to acknowledge my family and friends that have traveled here at great expense to themselves to be supportive and it is a pleasure to be here. 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Mr. Tallman, in our tripartite system of government, the Congress under the Constitution makes the law. The President as the chief executive enforces the law. The judiciary interprets the law. Some judges seem to think they have the authority to make law. What is your opinion of my interpretation of our Federal system of government? Mr. Tallman. Mr. Chairman, I agree with your characterization of the separation of powers. I believe that judges should abide by their constitutional obligation to interpret, not make law. Senator Thurmond. I am glad you agree with me. Mr. Tallman. Yes, sir. Senator Thurmond. Mr. Tallman, there has been much controversy about judges overturning the will of the people through voter initiatives in California, such as Proposition 209. Should judges show deference to the voters when reviewing the constitutionality of voter initiatives? Mr. Tallman. Mr. Chairman, I believe that the courts have an obligation to give the same deference to voter initiatives as we are obligated to do to statutes enacted by Congress, and that is that they are presumed to be valid unless shown to be against the Constitution. Senator Thurmond. Mr. Lawson, you have considerable experience in criminal defense work and you are a member of the Board of Directors for the Criminal Defense Attorneys of Michigan. Can you assure us that as a judge you can be fair and impartial in criminal matters that come before your court? Mr. Lawson. Mr. Chairman, yes, sir, I can assure the committee and the Senate that that would be the case. I think I am well aware of the difference and the critical distinction between a role of advocacy and that of the role of a judge and I look forward to embracing that role. Senator Thurmond. Judge Battani, in 1998 in the case of Estate of Mary Angela Preston v. Sinai Hospital, you held that a Michigan statute capping pain and suffering damages in medical malpractice cases was unconstitutional under the Michigan Constitution and under the U.S. Constitution. Please explain your reasoning in that case. Judge Battani. Yes, Senator, I would be glad to explain my reasoning. In the case of Preston v. Sinai Hospital, I dealt with this very difficult issue, and as I have in thousands of other cases in the last 20 years, I had made every effort to look at judicial precedent in making my determination. In fact, we start with the assumption that the statute is constitutional. Then in looking for precedent, I find that in the State of Michigan under State law, under State law and State Constitution, the right to jury trial is presumed a fundamental right, and our court has held that this fundamental right extends to damages. So in analyzing a fundamental right such as this, I was, under precedence, required to use the strict scrutiny rule, and as you know, the strict scrutiny rule is a very rigorous rule for a statute to undergo. I also looked at other jurisdictions' precedents because Michigan had no appellate holding in this area, and I found that in our neighboring State of Illinois, their highest court found that caps on non-economic damages could not apply. And in using that precedence, along with the precedence in the State of Michigan, I very reluctantly held that portion of the statute unconstitutional. I did, in working with the attorneys, resolve the matter and it was settled and my opinion was never appealed. Senator Thurmond. Judge Battani, in that case, Mary Angela Preston v. Sinai Hospital, you reasoned that limiting the size of awards for pain and suffering in medical malpractice cases was unconstitutional. Could your reasoning in this case be applied to strike down other statutes that limit damages, such as workers' compensation laws? Judge Battani. No, Senator. My reasoning has to be applied on an individual case basis. On each law, a judge is obligated to look at the precedence and apply that precedence and to look at even other jurisdictions' law. So I do not see that as happening. Senator Thurmond. Judge Antoon, sometimes the legislature fails to act on various public policy matters. What role, if any, do you believe judges have in developing public policy through case law when the legislature repeatedly fails to address important matters? Judge Antoon. Mr. Chairman, I do not believe that it is the role of a trial judge to set policy or to legislate from the bench. I believe that the role of the judge is to decide cases, those cases which are properly before the court. Senator Thurmond. Now I have questions for all the nominees. I will ask the question and then start with you and go down the line. Do any of you have any personal objections to the death penalty that would cause you to be reluctant to impose or uphold a death sentence? Mr. Tallman. Senator, I do not. Judge Antoon. Mr. Chairman, I have dealt with the death penalty in the past and I have no--there is nothing in my background that would interfere with my ability to fairly apply the law. Judge Battani. Senator, I have no objections. Mr. Lawson. Likewise, Senator, I have no objections. Senator Thurmond. The next question, what is your view on mandatory minimum criminal sentences and would you have any reluctance to impose them as a judge? Mr. Tallman. Senator, the Congress made it clear that it was seeking to achieve consistency in sentencing. The Supreme Court has upheld the sentencing guidelines and I will follow them. Judge Antoon. I have followed the Florida sentencing guidelines for a long time. I believe that my rulings have been consistent with those guidelines, and they include mandatory minimum sentencing. I would follow those guidelines. I think that is a prerogative of Congress, to establish guidelines, and it is an obligation of the court to follow them. Judge Battani. Senator, as a State judge, I have followed sentencing guidelines, and our sentencing guidelines where they include mandatory minimums, I have followed this and I have no difficulty with this. Mr. Lawson. Mr. Chairman, mandatory minimum sentences are ordained by Congress, and as such, it is the duty of the trial judge to follow that prescription and I would do so. Senator Thurmond. As you know, 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. What is your view of the Federal sentencing guidelines and their application? Mr. Tallman. Senator, as I have previously stated, the Supreme Court has determined they are constitutional and I would be obligated to abide by them. Judge Antoon. Mr. Chairman, as was stated earlier, I think by Mr. Lawson, the sentencing guidelines are the prerogative of Congress and it is the obligation of judges to apply them. Judge Battani. Mr. Chairman, my answer would be the same as the other two. It is the obligation of the Congress to make these rules and I have no difficulty following them, just as I have followed the Michigan sentencing guidelines for many years now. Mr. Lawson. Mr. Chairman, I agree with my colleagues on the panel and I would abide by the sentencing guidelines. Senator Thurmond. It is my view that judges should have judicial temperament. The more power an individual has, the more courteous he or she should be. Probably no one in our society has more power over the lives of individuals than a Federal judge, so it is especially important that someone in this role be courteous and civil. Do you agree? Mr. Tallman. Absolutely, Senator. Judge Antoon. I strongly agree, Mr. Chairman. Judge Battani. I strongly agree, also, sir. Mr. Lawson. Likewise, Mr. Chairman, I believe judicial temperament is an essential quality for a member of the trial bench. Senator Thurmond. Now this question. What do you believe was the most significant Supreme Court decision in the past 30 years and why? Mr. Tallman. Mr. Chairman, I would have to say that in the field that I practice in, primarily criminal law, it would have to be either Miranda v. Arizona or Gideon v. Wainwright, which Gideon, of course, gave the accused the right to appointed counsel in serious criminal cases to ensure that their sixth amendment rights were respected. Judge Antoon. I would agree, Mr. Chairman, that those are significant cases. I also believe that the Daubert decision involving the trial court's obligation with regard to evidentiary issues is extremely significant. Judge Battani. Mr. Chairman, I would agree that the cases cited are very significant. As a trial judge, I find that the Daubert case has been probably the most significant to me as it establishes the gatekeeping function of the judge. Mr. Lawson. Likewise, Mr. Chairman, in my role of teaching judges in the Michigan Judicial Institute, particularly in the field of evidence, we have found that the Daubert and the Kuhmo Tire v. Carmichael cases dealing with the province of the court in dealing with experts and filtering evidence which is valid and excluding junk science evidence are significant cases in promoting civil litigation. Senator Thurmond. Many complain that a case takes too long to wind its way through the courts. As a Federal judge, what specific measures do you intend to implement to encourage the speediest resolution of your cases? Mr. Tallman. Senator, I will work hard. I will try to employ alternative dispute resolution mechanisms. The Ninth Circuit actually has a trial project involving a settlement commissioner and we have been able to settle about ten percent of our cases on appeal that way. Judge Antoon. Mr. Chairman, I have not had experience in the Federal system as a judge, but I understand that in the Middle District of Florida, there is a fairly aggressive arbitration and mediation program that is working. In addition to that, my experience in the trial court at the State level led me to believe that the best way of docket control is a hands-on approach by the trial court, establishing a firm trial date and affording the attorneys set times to resolve undisputed motions leading up to the trial. Judge Battani. Mr. Chairman, I would implement the same trial docket management concepts that I have implemented in Wayne County Circuit Court and that I also teach at the National Judicial College. I find that, first and foremost, the judge controls the docket, and when one sets a trial date, there has to be a certainty of that trial date. I would plan to follow that practice. It has reduced Wayne County backlog from 17,000 cases over standard to a little over 200, and I would hope it would work in the Federal system, also. Mr. Lawson. Likewise, Mr. Chairman, Judge Battani's record is very impressive and I think that to follow her method would be an excellent step. Senator Thurmond. I would like to thank all the nominees for being here today. I ask that any follow-up questions be submitted to the committee by close of business on Monday. Thank you. Mr. Tallman. Thank you, Mr. Chairman. Judge Antoon. Thank you, Mr. Chairman. Judge Battani. Thank you, Mr. Chairman. Mr. Lawson. Thank you, Mr. Chairman. Senator Thurmond. The committee is adjourned. [Whereupon, at 4:02 p.m., the committee was adjourned.] Questions and Answers ---------- Responses of Richard C. Tallman to Questions From Senator Bob 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. The qualifications of a nominee should be determined on the basis of all of the information available to the Senate and its Members. With respect to constitutional issues, a candidate for judicial office is ethically restrained from stating what he or she might do in the future in addressing a particular constitutional issue. Question 2. What is the purpose of the United States Senate in holding hearings on nominees for the federal bench? Answer. The Constitution requires the ``advice and consent'' of the Senate and hearings are one way to assist the Senate in evaluating the President's nominees by serving as a public forum to examine the qualifications of a nominee and his or her suitability for holding judicial office. Question 3. What questions are legitimate to ask a candidate without the candidate prejudicing himself or herself? Answer. I believe that each Senator may decide whatever questions he or she wishes to pose to each candidate. Examples of appropriate questions certainly include those contained in the Senate Judiciary Committee's Questionnaire for Judicial Nominees respecting education, judicial temperament, experience, integrity, and anything in a candidate's background or financial affairs that might identify a potential for conflict of interest, susceptibility to blackmail, or lack of impartiality. Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer. A Senator may ask any question he or she wishes. Judicial nominees are limited by judicial ethical considerations from answering any question in a manner that would call for an ``advisory opinion'' as the courts have defined it or that in effect ask a nominee to suggest how he or she would rule on an issue that could foreseeably require his or her attention in a future case or controversy after confirmation. Question 5. 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 herself? Answer. No. Judges are obligated by the Constitution as members of an independent branch of government to follow Supreme Court precedent despite any personal opinions they may hold to the contrary on a particular issue. Question 6. If you were a Supreme Court Justice in 1856, what would you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393? Answer. It is entirely conjectural as to what I would have done without having the opportunity to thoroughly review the record presented on appeal, the briefs and arguments of counsel, and the supporting legal authorities that were applicable at that time. I note that the Thirteenth Amendment to the Constitution effectively overturned the Dred Scott decision when the amendment was ratified in 1865. Question 7. In Dred Scott v. Sanford, 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. The Thirteenth Amendment superseded this case. Question 8. 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. Sanford, 60 U.S. (19 How.) 393 (1856). Answer. Yes, had I been a United States Circuit Judge serving at that time. Question 9. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer. It is entirely conjectural as to what I would have done without having the opportunity to thoroughly review the record presented on appeal, the briefs and arguments of counsel, and supporting legal authorities that were applicable at that time. I note that the Plessy is no longer good law. The Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954), repudiated the holding in Plessy. Question 10. 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 separateaccommodations'' for black and white passengers, imposing criminal penalties for violations by railway officials. How should that precedent be treated by the Courts? Answer. It is my understanding that Plessy v. Ferguson has in effect been overruled by the Supreme Court in Brown v. Board of Education 347 U.S. 483 (1954), and by the subsequent enactment of the Civil Rights Act of 1964, Accordingly, that precedent should not be treated as good law by courts today. Question 11. 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. It is entirely conjectural as to what I would have done without having the opportunity to thoroughly review the record presented on appeal, the briefs and arguments of counsel, and the supporting legal authorities that were applicable at that time. I note that Brown v. Board of Education 347 U.S. 483 (1954), remains good law to this day. Question 12. 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 to treated by the Courts? Answer. As previously noted, Brown v. Board of Education remains good law today. If confirmed, I will be obligated to follow Supreme Court precedent. Question 13. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer. It is entirely conjectural as to what I would have done without having the opportunity to thoroughly review the record presented on appeal, the briefs and arguments of counsel, and the supporting legal authorities that were applicable at that time. I note that the Supreme Court has since modified Roe v. Wade, in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Question 14. 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 Rehnquist dissent in that case? Answer. If I am confirmed as a United States Circuit Judge, I will be obligated to follow Supreme Court precedent despite any personal opinions I may hold. I note that Roe v. Wade, has since been modified by the Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Question 15. We understand the Supreme Court precedent, but what is your personnel view on the issue of abortion? Answer. I hold no personal views that would prevent me from doing my judicial duty to follow the precedent set down by the Supreme Court in Roe v. Wade, as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), if applicable to the facts in some future case or controversy. Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer. The legislatures of many states, and the Congress in its considered judgment, have determined the need for a death penalty and when it should be administered. The Supreme Court has held that, properly administered, the death penalty does not violate the Eighth Amendment prohibition on ``cruel and unusual'' punishment. I hold no personal views that would prevent me from following the precedent established by the Supreme Court. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer. I hold no personal views that would prevent me from following the plain language of the Second Amendment and the precedent established by the Supreme Court in such cases as United States v. Miller, 307 U.S. 174 (1939). Question 18. 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 to 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. If I am fortunate enough to be confirmed as a United States Circuit Judge, I will be obligated to follow Supreme Court precedent despite any personal opinions I may hold. I hold no personal views that would prevent me from doing my judicial duty to follow the Supreme Court precedent in this area. Question 19. 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. I hold no personal views that would prevent me from following Supreme Court precedent in this area. Question 20. Do you believe that the death penalty is Constitutional? Answer. The Supreme Court has held that it is. I will follow the Supreme Court's ruling. Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer. The principle of stare decisis is important to the orderly development of the law. The decision by any court to overrule precedent should be done only after careful consideration of the record on appeal, the briefing and arguments of counsel, and a thorough review of applicable authority from prior decisions. Predictability and consistency in judicial interpretations is necessary to insure orderly resolution of legal problems and in ordering one's personal and business affairs. Courts should be very careful before changing established legal precedent in recognition of the detrimental reliance accorded the prior ruling. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), and numerous other cases, the Supreme Court has noted the ``prudential and pragmatic'' circumstances under which a court should overrule prior precedent. The Casey factors are set forth at 505 U.S. 854-55. Question 22. 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. I will follow the principles of statutory construction as enunciated by the Supreme Court. Acts of the legislature are presumed constitutional. If a question of statutory interpretation is presented, the reviewing court should first examine the plain language of the statute and apply the words actually used if they are not ambiguous. The court should also look to its own legal precedent or that of other jurisdiction interpreting analogous laws. Determination of legislative intent is very difficult and courts should proceed cautiously in this area. In the rare case when the constitutional issue cannot be avoided, and a court finds it necessary to engage in statutory interpretation, it may attempt to discern legislative intent by examining hearing testimony, legislative committee reports, and the record of floor debates that attended passage of the law. Courts should be careful before placing too much weight on whatever legislative materials are available since they may reflect only the views of certain legislators and may not be truly reflective of the actual intent of the legislature when enacting the challenged law. ______ Responses of John Antoon II to Questions From Senator Bob 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. A federal judicial nominee should try to fully answer all questions asked by Senators. However, judges and judicial candidates are obligated not to prejudge issues or issue advisory opinions. In addition, a sitting state judge is precluded from taking positions on an issue which might come before the judge. Question 2. What is the purpose of the United States Senate in holding hearings on nominees for the federal bench? Answer. I believe the purpose of a confirmation hearing is for the Senate to inquire regarding the nominee's qualifications and commitment to follow the Constitution of the United States, the laws enacted by Congress, and precedent. Question 3. What questions are legitimate to ask a candidate without the candidate prejudicing himself or herself? Answer. Questions regarding a nominee's qualifications and commitment to following the Constitution of the United States, the laws enacted by Congress, and precedent of the Supreme Court of the United States are legitimate. Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer. A Senator may ask any question he or she wishes, but a judge is obligated not to prejudge issues or issue advisory opinions. I do not believe a nominee should be required to take a position as to how the nominee might rule on an issue if confirmed, because doing so would be prejudging an issue that may come before the nominee if confirmed. Question 5. 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. U.S. District Court Judges and U.S. Court of Appeals Judges are bound to follow United States Supreme Court precedent unless and until overruled by the Supreme Court or modified by legislation. Question 6. If you were a Supreme Court Justice in 1858, what you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856)? Answer. I do not have the benefit of the arguments, briefs and discussions at conference in the Dred Scott case; therefore, I do not know how I would have ruled. However, as a Justice, I would have endeavored to follow precedent. Question 7. In Dred Scott v. Sanford, 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. The Thirteenth and Fourteen Amendments displaced the Dred Scott decisions; thus, that opinion no longer has precendential value. Question 8. If you were a judge in 1857, would you have been bound by the Oath and would you have been mandated to follow the binding precedent of Dred Scott v. Sanford, 60 U.S. (19 How.) (1856)? Answer. In 1857, lower court judges were bound to follow the Dred Scott decision. Question 9. If you were a Supreme Court U.S. District Court Justice in 1896, what would you have held in Plessy v. Ferguson, 183 U.S. 639 (1896)? Answer. I do not have the benefit of the arguments, briefs and discussions at conference in the Plessy v. Ferguson case; therefore, I do not know how I would have ruled. However, as a Justice, I would have endeavored to follow precedent. Question 10. In Plessy v. Ferguson 163 U.S. 639 (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. The decision in Plessy v. Ferguson has been overruled by Brown v. Board of Education and is no longer valid precendent. Question 11. If you were a Supreme Court Justice in 1854, what would you have held in Brown v. Board of Education 347 U.S. 483 (1954)? Answer. I do not have the benefit of the arguments, briefs and discussions at conference in the Brown v. Board of Education case; therefore I do now know how I would have ruled. However, as a Justice, I would have endeavored to follow precedent. Question 12. 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 through 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 Amemdment to the Constitution. How should that precedent be treated by the Courts? Answer. Brown v. Board of Education has not been reversed and remains valid precedent, and therefore must be followed by federal courts. Question 13. If you were a Supreme Court Justice in 1875, what would you have held in Roe v. Wade 410 U.S. 113 (1973)? Answer. I do not have the benefit of the arguments, briefs and discussions at conference in the Roe v. Wade case; therefore, I do not know how I would have ruled. However, as a justice, I would have endeavored to follow precedent. Question 14. 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 Renquist dissent in that case. Answer. Lower court judges are required to follow the majority opinion of the Supreme Court regardless of how well reasoned the dissents may be. Question 15. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer. I have no views that would prohibit me from carrying out the responsibilities of a federal district judge in following the Constitution and laws enacted by Congress in this area or any other area of law. Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer. As a state court judge I have rejected constitutional challenges to the death penalty. I hold no views that would prohibit me from following the law in death penalty cases or in any other area of law. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer. I hold no view that would interfere with the responsibility of a federal district judge to rule in accordance with the rights guaranteed by the Second Amendment. Question 18. 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. I possess no views regarding the right described in Planned Parenthood v. Casey which would interfere with my obligation to follow the Constitution, the laws of Congress and precedent of the United States Supreme Court. Question 19. 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. I possess no views regarding this issue which would preclude me from following the Constitution, the laws of Congress, and precedent of the United States Supreme Court. Question 20. Do you believe that the death penalty is Constitutional? Answer. Yes, I hold no view that would prevent me from following the precedent of the Supreme Court on this issue or any other issue. The Supreme Court has held that the death penalty is constitutional and the Constitution contemplates the penalty of death. Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer. The Supreme Court has indicated that in re-examining a prior holding, it looks to whether the precedent defies practical workability, whether overruling the precedent would cause special hardship due to reliance on the precedent, and whether the facts or related law have so changed as to have deprived the rule of significant application or justification. If I were a Justice of the Supreme Court, I would follow its precedent on this issue. Question 22. 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. It is my view that a judge should apply the plain meaning of the text in interpreting a statute. In the rare instances in which the meaning is not clear from the text, a judge should apply established rules of statutory interpretation, including cautious examination of the legislative history, understanding that a floor debate or report may reflect the view of only a few legislators, and that the best evidence of legislative intent is the language contained in the statute. Question 23. In the case of Coble v. Brevard School Board, Brevard County Case No. CA-007627 (1987), you ruled that under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, that a high school senior was entitled to hearing before being denied right to attend graduation ceremony for disciplinary reasons. What were the facts and what was the process due to the high school student that lead you to find that his/her constitutional rights were violated? Answer. I do not have detailed recollection of this case in which I entered a ruling thirteen years ago. Because the case was not appealed, there is no appellate opinion containing facts. All I have is the order which does not contain specific findings of fact. It is not unusual for our records to contain the order only and not the findings of fact. To the best of my recollection, a school principal suspended a student for a time beyond his scheduled high school graduation. I do not have a record as to the conduct upon which the suspension was based. I ruled that the student was entitled to minimal due process prior to being banned from his graduation ceremony. I believed that this was consistent with state precedent as I always endeavor to follow precedent. ______ Responses of Marianne O. Battani to Questions From Senator Bob 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. A nominee for a federal judgeship should attempt to answer all of a Senator's questions, including questions about the Constitution. The nominee, however, should recognize that there are certain questions which he or she may not answer. For instance, the nominee may be bound by the Code of Judicial Conduct and may not express any opinion on a matter that may come before the nominee if confirmed. As a sitting judge in Michigan, I am bound by the Michigan Code of Judicial Conduct which prohibits me from expressing opinions on pending or impending matters. Question 2. What is the purpose of the United States Senate in holding hearings on nominees for the federal bench? Answer. The purpose of the United States Senate in holding hearings is to question the nominee and to be fully informed about the nominee in order to properly exercise its duty of ``advice and consent'' under Article II, Section 2 of the Constitution. Question 3. What questions are legitimate to ask a candidate without the candidate prejudicing himself or herself? Answer. Questions about the nominee's background, education, temperament, non-pending judicial decisions, associations and activities are the types of questions that a candidate can legitimately answer without prejudicing himself or herself. Such questions solicit information which, I believe, is necessary and helpful to review the candidate's qualifications for a federal judgeship. Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer. I believe a Senator may ask any question he or she deems necessary to exercise the duty of ``advice and consent.'' There are questions, however, which a nominee may not answer. For instance, the nominee may be bound by the Code of Judicial Conduct and may not express any opinion on a matter that may come before the nominee if confirmed. Question 5. 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. No, a judge is bound to follow Supreme Court precedent. The judge may not substitute his or her own opinion for that of the precedent. Question 6. 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. I cannot say what my opinion would have been in the Dred Scott case without having had the benefit of the briefs and arguments of the parties and the deliberations of the Justices. I would follow the Constitution and as a Supreme Court Justice I would consider the relevant precedent. Question 7. 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. The Dred Scott decision was overruled by the Thirteenth Amendment to the United States Constitution abolishing slavery and that decision is no longer of any precedential value. Question 8. 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. Yes, as a trial judge I would have been bound by my oath to follow the binding precedent of the Dred Scott case. A court may not substitute its opinion, if any, for binding precedent. Question 9. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer. I cannot say what my opinion would have been in the Plessy v. Ferguson case without having had the benefit of the briefs and arguments of the parties and the deliberations of the Justices. In a challenge to this Louisiana statute as with any statute, a Justice is obligated to start with the presumption that the legislation is Constitutional. I would follow precedent and the Supreme Court rules with respect to its own precedent. Question 10. 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. The ``separate but equal'' holding of Plessy v. Ferguson was overruled by the case of Brown v. Board of Education, 347 U.S. 483 (1954), and should not be used for precedential value by a Court. Question 11. 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. I cannot say what my opinion would have been in the Brown v. Board of Education case without having had the benefit of the briefs and arguments of the parties and the deliberations of the Justices. I would follow the Constitution and as a Supreme Court Justice I would consider the relevant precedent. Question 12. In Brown v. Board of Education, 347 U.S. 382, (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. Brown v. Board of Education, 347 U.S. 483, (1954) is binding precedent and the appellate and trial courts are bound to follow it. A court may not substitute its opinion, if any, for binding precedent. Question 13. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer. I cannot say what my opinion would have been in the Roe v. Wade case without having had the benefit of the briefs and arguments of the parties and the deliberations of the Justices. In a challenge to this Texas statute as with any statute, a Justice is obligated to start with the presumption that the legislation is Constitutional. I would follow any relevant precedent. Question 14. 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 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 Rhenquist dissent in that case? Answer. A judge must follow the Roe v. Wade majority holding, as modified by the Planned Parenthood v. Casey case and any other relevant precedent, in performing his or her judicial duties. Question 15. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer. I have always strived to follow precedent in the past 20 years as a State judge, and in this area, as with any area of the law, I cannot substitute my own beliefs, if any, for that of binding precedent. Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer. The Supreme Court has held that capital punishment is Constitutional and the Constitution contemplates capital punishment, and I will follow the law. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer. In this area, as in all others, I am obligated to follow the precedent and cannot substitute my own beliefs, if any, for precedent. Question 18. 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. I am bound to follow the holding of the Planned Parenthood v. Casey case on the issue of right to privacy. As with any precedent, I cannot substitute my own beliefs, if any, for that of binding precedent. Question 19. 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. Senator, I can assure you that I would never substitute any personal opinion for that of established precedent. Question 20. Do you believe that the death penalty is Constitutional? Answer. Yes, the Supreme Court of the United States has determined that the death penalty is Constitutional. Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer. If I were a Supreme Court Justice, I would only vote to overrule a precedent under the conditions summarized by the Supreme Court in Planned Parenthood v. Casey, whether the rule of law has proven to be intolerable simply in defying practical workability; 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; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Question 22. 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. I do consider legislative intent in the sense that I presume the legislature's intent is expressed in the plain meaning of the text. I also would look at the debate for limited purposes. For instance, the debate might indicate whether a particular issue was considered and deliberately not included in the legislation. I would consider testimony only with great caution, because it would indicate only the opinion of the one witness and not the entire legislature. Question 23. In the case of the Estate of Mary Angela Preston v. Sinai Hospital, Case No. 96-642951-NH (June 12, 1998) concerned the constitutionally of a Michigan tort reform statute that capped non- economic damages in medical malpractice cases, you found that the statute violated the Fourteenth Amendment to the U.S. Constitution. How was the statute in question extreme and arbitrary? Answer. In the Estate of Mary Preston v. Sinai Hospital case, I started with the presumption that the provision of the statute on caps for non-economic damages in medical malpractice cases was constitutional. I then looked to see if there was any precedent to support the Constitutionality of the legislation. I found that my State had precedent which established that under the Michigan Constitution a jury trial is a fundamental right, including the right to a determination of damages. As a fundamental right I was bound to apply the strict scrutiny test, which is a very rigorous test for any legislation to pass. I also looked to other jurisdictions for analogous cases. In our neighboring State of Illinois, the Supreme Court held that the State statute placing caps on non-economic damages was unconstitutional. Using Michigan precedent and the Illinois Supreme Court decision, I reluctantly held that the caps did not apply in this case. After making my finding under the Michigan Constitution, I did address by dicta the Fourteenth Amendment under the United States Constitution. In doing so I adopted the findings of the Illinois Supreme Court case, Best v. Taylor Machine Works, 689 N.E. 2d 1057 (1997), which addressed are arbitrariness of the cap limitation. It ruled in summary that the cap on non-economic damages was arbitrary because it: (1) arbitrarily distinguished between slightly and severely injured individuals, (2) arbitrarily distinguished between individuals with identical; injuries, and (3) it arbitrarily distinguished between types of injuries. A settlement of this matter was worked out and any my opinion was never published or appealed. ______ Responses of David M. Lawson to Questions From Senator Bob 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. A nominee should respond, within the bounds of propriety to all questions posed by Senators for the purpose of assessing the nominee's qualifications to be a judge. Canon 3(A)(6) of the Code of Judicial Conduct for United States Judges states that ``[a] judge should avoid public comment on the merits of a pending or impending action * * *'' Likewise, a candidate should avoid commenting on matters which that candidate may be called upon to decide if confirmed. Otherwise, litigants may be required to present a matter to a judge who has evidenced a predisposition on that issue, and the fairness and impartiality of the process may be damaged. Question 2. What is the purpose of the United States Senate in holding hearings on nominees for the federal bench? Answer. The purpose of Senate hearings on nominees for federal judicial appointments is to allow Senators to learn about the qualifications of nominees so that the Senate may exercise its advise and consent prerogative. Question 3. What questions are legitimate to ask a candidate without the candidate prejudicing himself or herself? Answer. Legitimate questions include those touching upon the nominee's legal experience, skill, temperament, willingness to follow precedent, fidelity to the judicial process and constitutional limitations on the authority of the judicial branch, integrity and potential financial conflict of interest. Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer. Questions which are inappropriate include those which require the nominee to state in advance how a nominee may rule on a given issue. Question 5. 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. No. If a Supreme Court precedent is applicable, it must be followed by the lower courts. Question 6. 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. I do not know how I personally would have ruled had I been a Supreme Court Justice at that time without the benefit of the briefs and arguments of counsel. Question 7. 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. The Dred Scott decision should not be followed by courts today because it was abrogated by the Thirteenth Amendment. Question 8. 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. Yes. Question 9. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer. I do not know how I would have ruled personally without the benefit of the briefs and arguments by counsel. Question 10. 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 precedent be treated by the Courts? Answer. Plessy v. Ferguson should not be followed by courts today because it was overruled by the Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954). Question 11. 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. I do not know how I personally would have ruled had I been a Supreme Court Justice at that time, but I agree that the Supreme Court exercised its authority and that precedent must be followed by the lower courts. Question 12. 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. The lower courts must follow the precedent established in Brown v. Board of Education, 347 U.S. 483 (1954). Question 13. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer. I do not know how I personally would have ruled in that case, but I agree that the Supreme Court exercised its authority and that precedent must be followed by the lower courts. Question 14. In Roe v. Wade, 410 U.S. 113 (1973), the court held that a Texas statute which proscribed an abortion except where 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 Renquist dissent in that case? Answer. The legal reasoning in Roe v. Wade has been modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), which must be applied unless overruled or modified by the Supreme Court or Constitutional Amendment. Question 15. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer. I have no personal view on the issue of abortion that would interfere with me following the established precedent. Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer. I have no personal view on this issue that would interfere with me following the established precedent. The Supreme Court has determined that the death penalty is constitutional in decisions that must be applied by the lower federal courts as a matter of precedent. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer. I have no personal view on this issue that would interfere with me analyzing an issue under the Second Amendment. I am not certain that there is clear precedent from the Supreme Court which defines the contours of the Second Amendment. The Constitution must be applied by looking to the plain meaning of the language of any challenged legislation and the Constitution as informed by decisions of the Supreme Court and the applicable circuit court of appeals. Question 18. 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. As a district judge I would be obliged to follow the precedent established in Planned Parenthood v. Casey which includes a recognition of a right to privacy which must be balanced in the manner prescribed by the Supreme Court. Question 19. 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. I believe that it is inappropriate to share my personal belief on this issue because the question may be presented for decision to the federal courts. Lower federal courts are then bound to follow applicable precedent. Question 20. Do you believe that the death penalty is Constitutional? Answer. The Supreme Court has held that the death penalty is constitutional in Profitt v. Florida, 428 U.S. 242 (1976), and the applicable precedent must be followed. Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer. In Planned Parenthood v. Casey, 505 U.S. 833, 854-55 (1992) the Supreme Court identified some factors which may be considered when it is asked to overrule precedent. The factors include ``whether the rule has proven to be intolerable simply in defying practical workability,'' ``whether the rule is subject to a kind of reliance that would lend a special hardship to be consequences of overruling and add inequity to the cost of repudiation,'' ``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 ``whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.'' However, district judges have no business ``overruling'' Supreme Court precedent. District judges must apply the law as stated in the Constitution, the laws and rules enacted by Congress, and the decisional law of the Supreme Court and the applicable court of appeals. Question 22. 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. Judges must look first to the plain language of a statute which must be applied as written irrespective of legislative history. If the language is ambiguous, there are well-established rules of statutory construction that are then applied, including the rule that all words in a statute be given meaning. Legislative intent may be considered thereafter if the conventional rules of construction fail to resolve the ambiguity, but courts must be mindful of the possibility that the sources of legislative history may not contain the views of all the elected representatives who voted on the legislation. Question 23. From 1991 to 1994 you were a member of the group, People for the American Way. What activities did you perform as a member of the group, including but not limited to attending speeches, rallies, or lobbying? Also, what specific platform of People for the American Way caused you to join the group? Answer. I made minimal financial contributions to the organization, People for the American Way, in the amount required for membership between 1991 and 1994. I did no fund raising or lobbying nor did I attend any speeches or rallies. I do not recall exactly the reason I sent in contributions. Question 24. Do you subscribe to the following statement of People for the American Way: ``We defend the fundamental constitutional principle of the separation of church and state in dozens of venues and at all levels of government, often when the Religious Right has attempted to set the definition of religious liberty in the United States and to move government into roles properly occupied by clergy and house of worship.'' Answer. Since I have not been a member of People for the American Way for six years, I am not familiar with the organization's present activities or the positions it currently takes. Consequently, I am not able to comment on its level of activity and cannot subscribe to its characterization of its own work. NOMINATIONS OF KENT J. DAWSON, NICHOLAS G. GARAUFIS, PHYLLIS J. HAMILTON, ROGER L. HUNT, AND GERARD E. LYNCH (U.S. DISTRICT JUDGES); DONNIE R. MARSHALL TO BE ADMINISTRATOR, U.S. DRUG ENFORCEMENT ADMINISTRATION ---------- THURSDAY, APRIL 27, 2000 U.S. Senate, Committee on the Judiciary, Washington, DC. The committee met, pursuant to notice, at 2 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the committee) presiding. Also present: Senators Thurmond and Schumer. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH The Chairman. Today the committee is holding its third nominations hearing of the second session of the 106th Congress. We will hear from five judicial nominees, each of whom has been nominated to be a U.S. district court judge, and one Justice Department nominee who has been nominated to be Administrator of the Drug Enforcement Administration. We will have three panels 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 the judicial nominees: Kent J. Dawson, who has been nominated to the U.S. District Court for the District of Nevada; Nicholas G. Garaufis, who has been nominated to the U.S. District Court for the Eastern District of New York; Phyllis J. Hamilton, who has been nominated to the U.S. District Court for the Northern District of California; Roger L. Hunt, who has been nominated to the U.S. District Court for the District of Nevada; and Gerard E. Lynch, who has been nominated to the U.S. District Court for the Southern District of New York. The third panel will consist of the Justice Department nominee, Donnie R. Marshall. So I welcome all of you here today. Senator Thurmond will be chairing today's hearing because I have an Intelligence Committee meeting that I have to attend shortly. However, due to the continuing escalation of the amount of illicit drugs flooding into our country each year and the sharp increase in drug use among our youth, I want to make a brief statement regarding Mr. Marshall's nomination to be Administrator of the Drug Enforcement Administration. I have some questions that I will ask of Mr. Marshall in writing. I will submit them for the record and ask him to respond in writing. Mr. Marshall's nomination provides a timely opportunity to assess this administration's anti-drug efforts over the last 8 years. My comments are not meant as criticism of you, Mr. Marshall. After all, you took the helm of the DEA only recently. Nor should my comments be viewed as a criticism of your predecessor. I hope, however, that my comments and the questions that I have submitted can provide guidance in shaping your policies for the American people. In preparation for today's hearing, I have reviewed the administration's National Drug Control Strategy Annual Report for 2000 which we recently received from the Office of National Drug Control Policy. The news from the report is not comforting. Teen drug use remains unacceptably high. For instance, use among eighth graders since the last year of the Bush administration has increased 129 percent for marijuana and 80 percent for cocaine and 100 percent for both crack and heroin. The administration seems to boast that teen drug use appears to be ``leveling off'' since 1997, but is leveling off at such high rates something about which we should be proud? The fact is the epidemic of illegal drug use in this country remains our most urgent priority. In addition to the statistics I just mentioned, other recent studies and reports show equally dire findings. The use by teens of so-called ``designer drugs,'' such as ecstasy and GHB, is soaring. Between 1998 and 1999, for example, use of ecstasy among 12th graders increased by 56 percent, and use among 10th graders increased by 33 percent. In fact, last month, the DEA seized 32 kilos of ecstasy in Provo, UT, which represents several hundred thousand pills with a street value of over $2 million. And from the hearing I chaired on methamphetamine, it appears as though that insidious and destructive drug has begun to sweep across this country. Finally, cocaine production in Colombia continues to rise, and illegal drugs continue to pour into this country from Mexico. The picture is not encouraging. Why do we find ourselves in this situation? It is especially frustrating when one considers that from 1979 to 1992, the last year of the Bush administration, we had made significant progress in curbing drug use. For example, between 1985 and 1992, there was a reduction of almost 80 percent in cocaine use. To help determine how we got to where we are today, I reviewed the transcripts of hearings we have held on drug policy over the past 8 years. Three factors immediately present themselves: first, an abject failure of Presidential leadership; second, an ill-advised shift away from interdiction efforts; and, third, a treatment program with a misplaced focus on chronic, hard-core users. When President Clinton was campaigning for office in 1992, he stated that drug abuse was a national problem that ``requires a tough national response.'' Yet I cannot recall the last time I heard President Clinton speak out about drug use. Equally troubling is what we learned from your predecessor, Thomas Constantine. He told us that the President had not deigned one time to meet with him to discuss drug enforcement policy. And Mr. Constantine was the head of the DEA for 5 years. Many of us also recall that President Clinton upon taking office in 1993 immediately slashed the staff of the ONDCP by 80 percent and selected as the Surgeon General an individual who publicly advocated legalizing drugs. We would all agree that this President is a master politician with a talent for using the bully pulpit of his office. How unfortunate that he has not chosen to use his gifts to steer our Nation's youth away from drugs. Now, one of the cornerstones of the successful drug strategies of the Reagan and Bush administrations was the aggressive assault on the supply side of the national and international drug market. As my colleague Senator Feinstein has commented in the past, the ``real Federal role is interdiction,'' and we have to go after the big fish of the trafficking world. Inexplicably, this administration has paid too little attention to interdiction efforts. Indeed, early in his tenure, President Clinton submitted budget requests that routinely cut positions from the DEA, the FBI, and the Department of Justice. And throughout the past 8 years, the administration has diminished the important role played bythe Department of Defense in our international interdiction efforts. For example, since 1992, the number of military flight hours and ship days dedicated to detecting and monitoring illicit drug shipments has declined 68 percent and 62 percent, respectively. The President attempts to justify this change in strategy by arguing that we should shift our focus to ``source countries,'' such as Colombia and Mexico. Well, as of today, drug production in Colombia is up, and the country verges on chaos, and Mexico's ability to break the hold of its powerful drug cartels is increasingly in doubt. Not surprisingly, one can see falling street prices and increasing purity of drugs such as cocaine and heroin. With drugs increasingly readily available on our streets, it becomes ever more difficult to shield our youth from this temptation. And as I have said in the past, I am afraid the administration's so- called ``controlled shift'' policy has become a policy of reckless abdication. Finally, as I have heard for the past 8 years, while our drug policy must include a treatment and prevention component, the administration errs by devoting the lion's share of treatment resources to chronic, hardcore users. Studies suggest that, given the current state of medical knowledge, many of such users may simply be impervious to treatment. Wouldn't we be wiser to devote the bulk of our resources to more effective and achievable goals, such as preventing young people from ever experimenting with drugs and treating casual users before they become chronic, hard-core users? At the same time, we can continue to explore promising new medical research that may unlock the door to treating those trapped in a world of addiction. Now, Mr. Marshall, the picture I have painted is not pretty, and I know, given your life's work in narcotics enforcement, that you share my concerns, as did your predecessor, Thomas Constantine. It is my hope that you can prevail on the President over the next several months to join us in our effort to rid our Nation of this scourge. Speaking in 1992 at the Democratic National Convention, President Clinton made the following statement: ``President Bush hasn't fought a real war on drugs. I will.'' After 8 years, we are still waiting. [The questions of Senator Hatch are located in the appendix.] The Chairman. So I felt like I had to make those comments, and I can't be here for the rest of the hearing because of other commitments. But I am very grateful to have Senator Thurmond, the former chairman of this committee and, of course, our lead Senator in the United States Senate, who is willing to conduct these hearings. I welcome all of you, judgeship nominees and, of course, our new DEA Administrator, and we welcome all of you Senators who are here to speak for these judgeship nominees. Senator if you will take my place, I would appreciate it. STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA Senator Thurmond [presiding]. Today, we are conducting the ninth judicial nominations hearing of the 106th Congress. I welcome the distinguished Members of the Senate who are present to introduce particular nominees, and I welcome the nominees and their families. Judicial nominations hearings are among the most important duties of this committee. A Federal judgeship is not only a position of great power, it is also one of the great responsibilities to the people of this Nation and to the Constitution. After the judicial nominees, we will consider the nomination of Mr. Donnie Marshall to be Administrator of the Drug Enforcement Administration. I am especially pleased to have him with us today. I wish to proceed in the following manner: After opening statements, I would like for the members who are present to introduce their nominees. They will constitute the first panel. The second panel will consist of the following nominees: Kent Dawson to be a district judge for the District of Nevada; Nicholas Garaufis to be a district judge for the Eastern District of New York; Phyllis Hamilton to be a district judge for the Northern District of California; Roger Hunt to be a district judge for the District of Nevada; and Gerard Lynch to be a district judge for the Southern District of New York. The third panel will consist of Mr. Donnie Marshall to be Administrator of the Drug Enforcement Administration. Now, panel one, Senator Dianne Feinstein--is she going to be here? Senator Reid. She is on the floor, Mr. Chairman. Senator Thurmond. Senator Charles Schumer, is he here? Senator Moynihan. I will speak for him, sir. Senator Thurmond. As I call your name, just come forward and have a seat. Senator Daniel Patrick Moynihan, Senator Harry Reid, Senator Richard Bryan, Senator Kay Bailey Hutchison. Senator Moynihan, we will be glad to hear from you. STATEMENT OF HON. DANIEL PATRICK MOYNIHAN, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Moynihan. Well, thank you, Mr. President. It is an honor to appear before you, sir, and I---- Senator Thurmond. I might add, you are a very distinguished member of this body. Senator Moynihan. That is why you are our President. Senator Thurmond. Tell your folks back home I said that. [Laughter.] Senator Moynihan. Sir, I have the honor to introduce two candidates, if Senator Schumer is not available for the second. The first is Nicholas Garaufis, who is nominated for appointment to the U.S. District Court for the Eastern District of New York. Mr. Garaufis, Nicholas George Garaufis, obviously a Hellene, as you might say, comes to us from Queens in New York. He is a graduate of Columbia College and Columbia University School of Law, where he was the cofounder and managing editor of the Columbia Journal of Environmental Law. He has an outstanding professional record both in public service and private service. I would simply point out most importantly, sir, for the past 5 years he has been the managing attorney counsel to the Federal Aviation Agency. He has handled a large staff of lawyers and relatedprofessionals and done so with distinction, brought honor to a difficult--I mean brought credibility to a difficult set of problems at a difficult time. He has served as a member of the Judiciary Committee of the Association of the Bar of the City of New York for over a decade. Now, sir, I will take the liberty also of introducing to you Mr. Gerard Lynch, who is a nominee for the United States District Court for the Southern District of New York. Professor Lynch, as I will take the liberty of calling him, graduated summa cum laude from Columbia College, received his law degree from Columbia Law School, where he now teaches. He has been a particularly widely known criminal law expert, published numerous articles and textbooks in this field, particularly is well known as an authority on Federal racketeering laws. He has worked as a prosecutor for the Southern District of New York and as counsel for various investigations of possible government corruption. He is just the sort of person we need on the Southern District, and I commend him to you, sir, and thank you for your courtesy in allowing me to speak for my distinguished colleague, Senator Schumer. Senator Thurmond. Senator, we would be glad to hear from you. STATEMENT OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA Senator Reid. Thank you very much, Mr. President Pro Tem. Mr. Chairman, I take the responsibility of recommending candidates of the President very seriously, especially in light of the fact that the Federal bench in Nevada continues to be the most overburdened district court in the entire country. There are a lot of reasons for that. One is that we have been for the past 14 years the most rapidly growing State in the Nation. Las Vegas, Clark County, has been one of the fastest growing counties in the entire country for these many years. Also, the Federal Government owns 87 percent of the land in the State of Nevada. This creates a lot of problems in the Federal court system. The State of Nevada has 95,000 square miles that the Federal Government controls, either through the Bureau of Land Management, Fish and Wildlife Service, Forest Service, and many other Government entities, including the U.S. military. This large Federal presence in Nevada, together with the fact that we have millions and millions and millions of tourists that come to Nevada every year--and these two judges will be in the Las Vegas area, and it is even more pronounced there with the tourists that come to that part of the State. We have lots of problems dealing with different types of crime. Mr. Chairman, the large Federal presence in Nevada, as I have indicated, creates a huge burden on district court, especially this Las Vegas court. In Nevada, we have district judges who sit in Reno and 500 miles away in Las Vegas. Both of these judges will be in the Las Vegas area. In addition to what I have outlined, Mr. Chairman, Nevada is also the home to several very important military installations. This also creates litigation and the need of courts to be involved in many different ways. This explosion of population, the heavy Federal presence, as an example, I say, Mr. Chairman, that Nevada has the highest per capita presence of FBI agents of any place in the United States. There is just a lot of work that needs to be done in the court system. Now, the State of Nevada, under the leadership of Chief Judge Howard McKibben, who was selected by Senator Laxalt when he was here, and United States Attorney Katherine Landruth have done an outstanding job of working on all the many problems with the lack of resources they have. But it has been extremely tough. According to the FBI, as an example, Mr. Chairman, its criminal apprehension team, which is charged with tracking and apprehending fugitives, has arrested nearly 3,000 fugitives in Nevada in a little over 2 years. And many, many of these fugitives stand before one of these district court judges in Nevada. So I could run through a laundry list of statistics and tables which all demonstrate, Mr. Chairman, that Nevada desperately needs Roger Hunt and Kent Dawson, who I am very proud to introduce today. I have known both of these gentlemen for approximately 30 years. Mr. Chairman, as a U.S. magistrate, Roger Hunt has been a judge and has demonstrated his experience and leadership in the Federal court system for the District of Nevada. He has done an outstanding job in the 7 years that he has been there. There isn't a person that I have found since selecting Roger Hunt that has said a single negative word about him or his work in the courts. He is a fourth-generation Nevadan. He is well respected by all the judges--local, State, and Federal judges-- and he will make an outstanding addition to an already excellent U.S. district court. Judge Hunt is joined here today by his wife, Mauna Sue, and they have six children and three grandchildren. Judge Kent Dawson is also a long-time friend of mine, Mr. Chairman. He presently serves in Nevada's second largest city as a justice of the peace. He previously served as a municipal judge in Henderson. I have known and watched his legal prowess in the courts for many years. He did an outstanding job in the private sector, as did Roger Hunt, before he took leadership in the bench. He is here with his wife, Ruth. They have four children and three grandchildren. I can't say enough good about these two men. They will just be tremendous assets to not only the Nevada bench but the Federal bench for our country. And I appreciate very much this committee allowing them to be heard at this very most appropriate time to get judges in the State of Nevada. Senator Thurmond. Senator Bryan. STATEMENT OF HON. RICHARD H. BRYAN, A U.S. SENATOR FROM THE STATE OF NEVADA Senator Bryan. Thank you very much, Mr. Chairman. Let me first thank you for convening this hearing and to commend my senior colleague for the choices that he has made in submitting these nominees. Senator Reid. That we made. Senator Bryan. I concur in every respect enthusiastically. Let me in no way suggest that I don't have anything but the greatest respect for these two men who are before you today. Mr. Chairman, we in Nevada have an outstanding Federal bench, I think by any objective standards far exceeding any parochial biases that Senator Reid and I might bring to the table. It is a bench that is without equal in any United States district throughout the country. Nominees have been submitted by Senator Cannon, Senator Laxalt, Senator Hecht, and more recently Senator Reid, with my full concurrence. Each of those judges are individuals that I have confidence in. Each of them bring energy and each of them bring a distinguished record. They are, Mr. Chairman, in my judgment the most overworked Federal judges in America, and that is why it is important that the two nominees that are before this committee must be considered and acted upon swiftly in order to provide the quality of justice that each of the litigants in our own State is entitled. I am going to ask unanimous consent that the full statement that I have here be made a part of the record. Also, let me simply say that I want to associate myself with the comments of my senior colleague and say that I, too, have been privileged to know each of these practitioners, Judge Hunt and Judge Dawson, since they began their legal careers in Southern Nevada in the early 1970's, at a time in which I was as private practitioner. I respect their legal abilities, as do their colleagues. I respect their integrity. And I respect the kind of energy and commitment that I know that they will bring to the Federal bench. Finally, I respect their judicial demeanor. They are the kind of men who will distinguish themselves as members of the bench, to be fair to both litigants and lawyers that appear before the bar, and will dispense the quality of justice that Americans and Nevadans are entitled. I cannot speak more enthusiastically about them. As I say, my colleague has chosen wisely, and I would urge your swift confirmation so that this can move to the floor for action. Again, Mr. Chairman, I thank you. I am going to have to excuse myself to go to a markup with Senator Hatch, but I thank you for your consideration and hope that we might receive action on these immediately. [The prepared statement of Senator Bryan follows:] Prepared Statement of Hon. Richard H. Bryan, a U.S. Senator From the State of Nevada Mr. Chairman, I want to thank you for the opportunity to speak on behalf of both Judge Roger Hunt and Justice of the Peace Kent Dawson regarding their nominations as judges to the United States District Court. Judge Roger L. Hunt has dutifully served the State of Nevada in several capacities throughout his lifetime. While attending law school at George Washington University, Judge Hunt worked as a legislative aide to former Senator Howard Cannon. After receiving his law degree in 1970, he returned to Nevada to serve as Clark County deputy district attorney for one year. In December of 1971, Judge Hunt entered into private law practice in Nevada. During his time in private practice, he volunteered in several community forums including the following: former chief of the Nevada Indian Commission; former member of the Nevada Commission on Drug Abuse Education, Prevention, Enforcement and Treatment; and, former board member of the Boulder Dam Area Council of the Boy Scouts of America. In 1992, after more than 20 years in private practice, Judge Hunt was appointed U.S. Magistrate in Nevada. During his tenure as a federal magistrate, Judge Hunt has done an exemplary job in providing equal justice under the law. I believe that with almost 30 years of experience in the legal arena, and as a fourth generation Nevadan, Judge Hunt would be a welcome and laudable addition to the United States District Court in Nevada. Justice of the Peace Dawson has also served the State of Nevada throughout his professional career. Graduating from the University of Utah Law School in 1971, Judge Dawson relocated to Nevada and worked for one year as a law clerk to Judge James Guinan of the Washoe County District Court. In June of 1973, he was appointed City Attorney for Henderson, Nevada, while also serving as General Counsel to the Henderson Public Improvement Trust. For the next 10 years, Judge Dawson was a partner at Harding and Dawson, Chtd., and then began his own legal corporation and practiced law there through 1995. After serving as judge pro tem with the Henderson Municipal Court for two years, Judge Dawson then became justice of the peace for Henderson and is currently working in that capacity. In addition to his legal practices, Judge Dawson has served in the following community positions: member of the Henderson Chamber of Commerce; consultant to the Clark County Pro Bono Project; and, advisor to the Boulder Dam Area Council Boy Scouts of America. With almost 30 years expertise in the field of law, combined with an outstanding record of service in Nevada, I believe that Judge Dawson would be a credible and distinguished member of the U.S. District Court in Nevada. I am very pleased that the Senate Judiciary Committee has allowed this hearing to take place concerning these nominations, and I am hopeful that both Judge Hunt and Judge Dawson will be afforded the opportunity to serve as U.S. District Court judges in the near future. Senator Thurmond. Thank you. Now we come to brains and beauty. Senator Hutchison. STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Hutchison. Thank you, Mr. Chairman. Mr. Chairman, I am here today to introduce to the committee Donnie Marshall, who has been nominated to be Administrator of the Drug Enforcement Agency. I want to say that I am very proud that he is still a Texan and considers that as his permanent home and that I could introduce him as such. He was born and raised in Texas in a small town that my great-great-grandparents settled, San Augustine, TX. He is a graduate of the Stephen F. Austin University in Nacogdoches, which is the oldest town in Texas. He has had a career in law enforcement since 1969. In fact, he has worked for the DEA since its inception. For 30 years, he has been fighting the drug war in our country. Mr. Marshall was confirmed by the Senate as Deputy Administrator for the DEA in September 1998. He was named Acting Administrator in July 1999. If confirmed as Administrator, he will be the seventh Administrator of the DEA since it was established in 1973. I can't say enough about the efforts of our DEA agents. They literally put their lives on the line every day so that our country can be free of the scourge of illegal drugs. In 1998, the DEA made 33,000 arrests. They seized over 400,000 kilograms of drugs, ranging from heroin to cocaine to marijuana. In the 1980's and 1990's, 36 agents lost their lives in the line of duty. Sadly, Mr. Chairman, as you know, the drug epidemic is alive and well in the United States. In 1998, one in ten children ages 12 to 17 were current users of illegal drugs. That is nearly double the rate since 1992. I am pleased that the President has nominated a career agent to head the DEA. The drug war is not a Republican or a Democrat war. We need the best and most experienced agents that we can find to lead our anti-drug efforts. I believe Donnie Marshall is just such a man. I also want to take this chance, Mr. Chairman, to say that he brought his wife and three children with him, and I would like to ask for them to stand. Catherine Pressler is his wife. His three children are sons, Emory and John Ross, and his daughter, Alissa, and I would say that today is ``Take Our Daughters to Work Day,'' and he has accomplished that by bringing his daughter, Alissa. So I welcome them, and I recommend Mr. Marshall highly to this committee. Senator Moynihan. Mr. President, may I say that Mr. Garaufis' father and brother are with him today as well, and I see my distinguished colleague Senator Schumer is here. He would know that I spoke briefly on behalf of Professor Lynch, but I know he was going to add much more, as there is so much more to say. Senator Schumer. Thank you, my senior leader. Senator Thurmond. I would be glad to call on you now. STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK Senator Schumer. Well, thank you, Mr. Chairman, and I appreciate your holding these hearings and the beneficence with which you always preside. And I want to thank my senior colleague, Senator Moynihan, who has a distinguished record, of course, we know, in the entire Senate but also in his filling the bench with the highest quality of candidates over the years he has been Senator, which I have learned in my first year is one of the great joys of being a Senator is to be able to nominate distinguished people to the bench, and I want to thank Senator Moynihan. Our Legal Committee, which is doing a great job, was really guided by his Legal Committee, and we model it on what he has done. I want to introduce, Mr. Chairman, with great---- Senator Thurmond. Senator, feel free to come back again. [Laughter.] Senator Schumer. And let's hope he will be back with more nominations, Mr. Chairman. But, in any case, it is with great pride and pleasure I introduce two superb New Yorkers to you and this committee, and that is Gerard Lynch and Nick Garaufis. At my recommendation, Mr. Chairman, President Clinton has nominated Gerard Lynch to fill a vacant Federal judgeship in the Southern District of New York. Professor Lynch's experiences and accomplishments as both a practitioner of law, a professor of law, and as a public servant, make him a superb candidate to be a Federal judge. Professor Lynch's background and career accomplishments are, quite frankly, Mr. Chairman, staggering. He was born and raised in Brooklyn, a place near and dear to my heart. He then attended Columbia College and graduated first in his class, followed by Columbia Law School, where he also was number one in his class. After law school, he accepted two judicial clerkships, first with one of New York's great jurists, Judge Wilfred Feinberg of the Second Circuit, and then with Justice William Brennan on the Supreme Court. Since that time, he has had a multifaceted career that is impressive and is hard to sum up quickly, but I will try. Since 1977, he served as Paul J. Kellner Professor of Law at Columbia Law School where he teaches criminal law and criminal procedure, as well as constitutional law and other courses. He is a leading expert on the Federal racketeering laws and has written numerous articles on the subject. He has also published articles on other aspects of criminal law, constitutional theory, and legal ethics. And maybe most importantly, he is considered one of Columbia Law School's outstanding professors, winning a number of awards for excellence in teaching and serving as a guide and mentor to countless students over the years. I will admit I have a little inside information about this, Mr. Chairman, because a member of my staff went to Columbia. Professor Lynch, however, has not just been a professor. He also spent years as a Federal prosecutor in the Southern District of New York, one of the premier U.S. Attorney Offices in the country. He tried numerous cases, including white-collar and political corruption cases, and eventually rose to be chief of the Appellate Division there. In 1990, Professor Lynch was asked to return to that office as the chief of the Criminal Division under U.S. Attorney Otto Obermeyer. In that capacity, he supervised more than 135 prosecutors and oversaw all of the office's criminal cases. He has also served as counsel to numerous State, city, and Federal commissions and has worked with a number of special prosecutors investigating corruption. Moreover, from 1988 to 1990, he served as a part-time associate counsel for the Office of Independent Counsel. More recently, Professor Lynch has been counsel to a top New York law firm, primarily handling white-collar criminal matters and regulatory matters, while still maintaining a full course load teaching at Columbia. There is obviously much more I could say ranging from Gerry's study of Latin and Greek to his love of theater, art, and ballet, and his membership in a Shakespeare club. I won't tell you about his recent roles. But I will close by admitting I am very excited about the prospect of Professor Lynch becoming the next member of the Southern District of the New York bench. I know his wife and who, who unfortunately couldn't be here today, are very proud of him, and rightfully so. He has the rare combination of intelligence, practical experience, judicious temperament, fairness, and a devotion to hard work that make for truly great judges. Mr. Chairman, I know Senator Moynihan has already introduced Nick Garaufis, but I would also like to say a few words in favor of his nomination. I have known Nick for a very long time, and his dedication to public service has been preeminent. He is currently serving as chief counsel at the Federal Aviation Administration, a position he was appointed to in 1995, and prior to that appointment, he served for 9 years as chief counsel to the president of the borough of Queens. And when I worked with him there, Mr. Chairman, he again showed intelligence, dedication, hard work, fairness, a judicious temperament, and was liked by everybody who he dealt with. He also previously served in the New York State Attorney General's Office. He has been a member of the local school board in Bayside, Queens, one of the best in the entire city and State of New York, and he has been a substitute teacher in the New York City Public Schools. Though these positions have been a little less high profile, to my mind they are of comparable importance, and they speak significantly about the character of Nick Garaufis. He is obviously a man who is devoted to public service and the public good, particularly in New York. I very much hope that he will continue that service as a judge in the Eastern District. Mr. Chairman, thank you for the honor of introducing these two very fine nominees. Senator Thurmond. Thank you very much. Senator Schumer. Oh, Mr. Chairman, could I get unanimous consent to add the statements of my colleague, Senator Leahy, into the record? Senator Thurmond. Without objection, so ordered. Senator Schumer. Thank you, sir. [The prepared statement of Senator Leahy follows:] Prepared Statement of Senator Patrick Leahy, a U.S. Senator From the State of Vermont This afternoon the Judiciary Committee holds what is only equivalent to a second hearing for judicial nominees this year. Before today we have heard from only two nominees to our Courts of Appeals and four to District Courts. Today we will hear from another five lucky nominees to the District Courts but no nominee to a Court of Appeals. 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. I do thank the Chairman for proceeding today with five outstanding judicial nominees: Judge Kent Dawson, nominated to the District Court in the District of Nevada; Nicholas Garaufis, nominated to the District Court in the Eastern District of New York; Judge Phyllis Hamilton, nominated to the District Court in the Northern District of California; and Judge Roger Hunt, nominated to the District Court in the District of Nevada; and Gerard Lynch, nominated to the District Court in the Southern District of New York. Donnie Marshall, who has been nominated by the President to be the Administrator of the Drug Enforcement Administration, has also been included in this hearing. Unfortunately, we have been unable to obtain action on the nomination of Don Vereen to be the Deputy Director of the Office of National Drug Control Policy or Dan Marcus, whose nomination to the third highest position at the Department of Justice, the office of Associate Attorney General, continues to languish without Committee action. There are currently 78 vacancies on the federal courts across the country, and there are 10 more on the horizon. Had Congress authorized the additional judgeships that the Judicial Conference has proposed over the past several years, judicial vacancies would currently number over 130. The vacancies on the courts of appeals around the country are particularly acute. The Ninth Circuit continues to be plagued by multiple vacancies. We should be making progress on the nominations of Barry Goode, Judge Johnnie B. Rawlinson and James E. Duffy, Jr. I am acutely aware that there is no one on the Ninth Circuit from the State of Hawaii. I know that federal law requires that ``there be at least one circuit judge in regular active service appointed from the residents of each state in that circuit,'' 28 U.S.C. 44(c), and would like to see us proceed to confirm Mr. Duffy and the other well- qualified nominees to that Court of Appeals. The Fifth Circuit continues to labor under a circuit emergency declared last year by its Chief Judge. We should be moving the nominations of Alston Johnson and Enrique Moreno to that Circuit to help it meet its responsibilities. Earlier this year I received a copy of a letter from the Chief Judge of the Sixth Circuit concerning the multiple vacancies plaguing that Circuit. Chief Judge Merritt was disturbed by a report that this Committee would not be moving any nominees for the Sixth Circuit this year. We should be moving on the nominations of Kathleen McCree Lewis, Kent Markus, and Helene White. The Senate has only confirmed seven judges all year, and six were nominations carried over on the Senate Executive Calendar from last session and that could have been acted on last year. By this time in 1992, the Committee had held 5 confirmation hearings for judicial nominees and 25 judges had been confirmed. By this date in 1994, the Committee had held 6 hearings, and 19 judges had been confirmed. By this time in 1998, the Committee had held 4 hearings and 22 judges had been confirmed. This year we remain leagues behind last year's pace, and I challenge this Committee and the full Senate to return to that pace. 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 across the country. I look forward to hearing from these outstanding nominees today and urge all Senators to join us to make the federal administration of justice a top priority for the Judiciary Committee and for the Senate this year. Senator Thurmond. Senators Feinstein and Boxer have requested that their statements of strong support for the nomination of Phyllis Hamilton be entered into the record. Without objection, that will be done. She deeply regrets that she could not be here today. She intended to come and speak, but she is on the floor of the Senate debating the victims' rights amendment to the Constitution and simply could not get away. [The prepared statements of Senators Feinstein and Boxer follow:] Prepared Statement of Hon. Dianne Feinstein, a U.S. Senator From the State of California I rise with pleasure to introduce Phyllis Hamilton to the Judiciary Committee as my nominee to be United State District Court Judge for the Northern District of California. Phyllis Hamilton presently serves as a Federal Magistrate for the Northern District of California, where she has earned the highest praise from her legal peers for her professionalism, intellect, and fair handling of cases. Magistrate Hamilton's path to her current position reveals an exceptional work ethic, dedication, and commitment to the law. She grew up in rural Illinois, raised by her aunt, in a community where most residents worked in factories. Knowing from the age of 14 that she wanted to be a lawyer, Magistrate Hamilton completed her undergraduate degree at Stanford in just three years. She then attended law school at the University of Santa Clara, and graduated with honors. Magistrate Hamilton has spent her entire professional career in Northern California. She has served as an Administrative Judge for the United States Merit System Protection Board and as a Municipal Court Commissioner in Alameda County. At 33, she was one of the youngest sitting Commissioners in the Oakland Municipal Court. Magistrate Hamilton obtained an appointment as a Federal Magistrate in 1991. In 1999, Magistrate Hamilton was re-appointed to a second eight-year term by the Northern District Court of California after a unanimous recommendation by a Merit Review Panel. I would note that the Panel did not receive a single, negative public comment when it solicited public input on her candidacy. Magistrate Hamilton enjoys the strong support of her legal peers. Marilyn Hall Patel, Chief Judge of the Northern District Court has described her as being ``an outstanding candidate for the position'' of an Article III Judge, and ``one of the strongest judicial officers of this court.'' District Court Judge Martin Jenkins writes that Magistrate Hamilton has distinguished herself as ``a judge who is uncommonly bright, wonderfully articulate and conscientious in a way that inspires respect from her colleagues and lawyers appearing before her.'' Burnham Matthews, Chief of Police of the City of Alameda, strongly endorses Magistrate Hamilton. He notes that her high level of professionalism has ``earned [her] a positive and solid reputation among police officers throughout the department.'' Alameda County Deputy District Attorney Thomas Stark, echoes these views: ``I know that I speak for every lawyer who has appeared in front of her when I say that she is supremely talented, smart and tough--all important characteristics for a judge. She treats everyone who appears in front of her fairly.'' Mr. Chairman, the Federal District Court and the country would be well served to have Magistrate Hamilton sit on the Federal bench. I strongly recommend her to the Judiciary Committee, and urge that she be speedily confirmed. ______ Prepared Statement of Hon. Barbara Boxer, a U.S. Senator From the State of California Today, the Committee considers Phyllis J. Hamilton for the U.S. District Court for the Northern District of California. Judge Hamilton was nominated by the President upon the recommendation of my colleague, Senator Feinstein, and I support her nomination. From 1976 to 1980, Judge Hamilton served as a Deputy Public Defender in the California State Public Defender's Office. From 1980 to 1985, she served as an Adminstrative Judge for the San Francisco Regional Office of the U.S. Merit Systems Protection Board. From 1985 to 1991, Judge Hamilton served as Court Commissioner to the Municipal Court for the Oakland-Piedmont-Emeryville Judicial District. Judge Hamilton currently serves as a U.S. Magistrate Judge on the U.S. District Court for the Northern District of California. Judge Hamilton has strong support from the judicial and local communities, including the Honorable Martin J. Jenkins of the U.S. District Court for the Northern District of California and Jeffrey P. Stark, Deputy District Attorney for Alameda County. I urge you to move her nomination forward in an expeditious manner. Senator Thurmond. Now, I ask that each witness nominee come to the witness table and raise your right hands and I will administer the oath. Raise your right hands and I will administer the oath. Do you swear that the testimony you shall give in this hearing shall be the truth, the whole truth, and nothing but the truth, so help you God? Judge Dawson. I do. Mr. Garaufis. I do. Judge Hamilton. I do. Judge Hunt. I do. Mr. Lynch. I do. Senator Thurmond. Have seats. If any of you have any opening statements or would like to introduce any family or friends who are with you here today, please feel free to do so at this time. We will start with Judge Dawson and go on down the line. TESTIMONY OF KENT J. DAWSON, OF NEVADA, TO BE U.S. DISTRICT COURT JUDGE FOR THE DISTRICT OF NEVADA Judge Dawson. Thank you. I would like to introduce my wife, Ruth, who is here with me, and also to recognize my family and my coworkers from Nevada, my fellow attorneys, also to thank Senator Reid and Senator Bryan for being here, for presenting my name for nomination, and for the great friends and supporters that they have been throughout the entire time that I have lived in Nevada. Thank you, Mr. Chairman. 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GARAUFIS, OF NEW YORK, TO BE U.S. DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK Mr. Garaufis. Good afternoon, Mr. Chairman. I would like to thank my father, George Garaufis, and my brother, Michael Garaufis, for joining me here today for this hearing. I would also like to thank my two sons, Jamie and Matthew, who are not here, for their support and acknowledge the fact that my mother, Demetria Garaufis, who recently underwent surgery in New York, could not be here today, but is thinking about us here today. In addition, I would like to thank the deputy chief counsel of the FAA, James Whitlow, and my staff assistant for the last 5 years at the FAA, Ms. Dee Davis, for their presence here today, and in addition, acknowledge the presence of two members of Senator Moynihan's judicial screening panel at the time of their recommendation to the Senator of my name, Judge Richard Eton and Kenneth Gross, who are both here today. And in addition, two of my very dear friends, Susan McNally and Marvin Rappaport, two very fine lawyers in the District of Columbia, who have also joined us, I thank them for being here, and I thank you very much for holding this hearing. 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We have a Judge Hamilton in my State that I appointed judge. Do you know him? Judge Hamilton. No, I don't. Senator Thurmond. Go ahead. TESTIMONY OF PHYLLIS J. HAMILTON, OF CALIFORNIA, TO BE U.S. DISTRICT COURT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA Judge Hamilton. First of all, I would like to thank the committee for holding this hearing, and although Senator Feinstein could not be here this afternoon, I certainly want to thank her for my recommendation. I would like to at this time to recognize and thank my husband, Stephen Rowell, who is present, and I would like to recognize our children, Stevie and Mariska, who could not be here today. I would also like to take the opportunity to recognize Tom Hnatowski, who I believe is in the audience, from the Magistrate Judges Division of the Administrative Office of the Courts, and I simply would like to say that the Magistrate Judges Division has always provided great support to all of us, including helping me find a hotel room in this very difficult town. Thank you. 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Judge Hunt. TESTIMONY OF ROGER L. HUNT, OF NEVADA, TO BE U.S. DISTRICT COURT JUDGE FOR THE DISTRICT OF NEVADA Judge Hunt. I would like to introduce my wife, who has stuck with me now for 35 years and is here to support me today, Mauna Sue. I appreciate her being here. Senator Thurmond. Stand up. Thank you. Ladies always look better when you see them. [Laughter.] Judge Hunt. I also appreciate the support of my five living children, Rachelle, Kristina, Tyler, Melannee, and Ryan, who are here in spirit if not physically. I also appreciate the committee setting this hearing and inviting me to come. I appreciate Senator Reid and his willingness to submit my name for nomination and both his and Senator Bryan's strong support. I would echo Judge Hamilton's expression of appreciation to Tom Hnatowski, to the Administrative Office and their support of magistrate judges, and the magistrate judges' support to everything that takes place with their fellow judges. Thank you. 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Mr. Lynch. TESTIMONY OF GERARD E. LYNCH, OF NEW YORK, TO BE U.S. DISTRICT COURT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK Mr. Lynch. Thank you very much, Mr. Chairman. I would like to thank you for holding this hearing, first of all. It is a great and humbling honor to be here. I would like to thank Senators Schumer and Moynihan for their very kind remarks, and to acknowledge and thank for their support my wife, Dr. Karen Marisak, who could not be here today, having to work back in New York, and my son, Christopher, who is taking some final examinations in his college classes today, and I empathize with him a great deal given what I am doing today. Thank you very much. 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All right. Now we are ready to start. Judge Dawson, sometimes the legislature fails to act on various public policy matters. What role, if any, do you believe judges have in developing public policy through case law when the legislature repeatedly fails to address important matters? Judge Dawson. I believe that the failure of the legislature to address an issue may mean that that issue does not need to be---- Senator Thurmond. Speak louder. I can't hear you. Judge Dawson. I believe that the legislative failure to address an issue may mean that that issue doesn't need to be addressed, and the judges are not there to be engines of social change. They are there to interpret laws and to follow precedent. So I believe that the absence of legislative action may say as much as legislative action itself. Senator Thurmond. Mr. Garaufis, please explain the process and review that you will undertake as a judge to evaluate whether a law is unconstitutional. Mr. Garaufis. Mr. Chairman, the first thing that I would do is look to the statute itself and apply the principle that there is a presumption of constitutionality. I would then look at the precedent which has been created for us by the Supreme Court of the United States and by the circuit courts in interpreting similar statutes in order to get the guidance that I would require in order to make such a determination. I think that the key element of the examination is the presumption of constitutionality of enacted statutes. Senator Thurmond. Judge Hamilton, there has been much controversy about judges overturning the will of the people through voter initiatives in California, such as proposition 209. Should judges show deference to the voters when reviewing the constitutionality of voter initiatives? Judge Hamilton. Mr. Chairman, indeed, laws enacted by the voter initiative process are entitled to the same deference, presumption of constitutionality as those laws enacted by our elected officials. So to that extent, I would have to answer yes, there obviously should be deference given to duly enacted laws either by the voters or by the State legislature. Senator Thurmond. This question to both Judge Hamilton and Judge Hunt. As you know, the Prisoner Litigation Reform Act was an attempt to limit prisoner litigation and limit court involvement in the operations of prisons. Do you believe that the Act has generally been beneficial to the legal system, or do you believe it places too many restrictions on the ability of judges to remedy constitutional violations in the prison context? Judge Hamilton. To the extent that I have dealt with the Prisoner Litigation Reform Act in my current role as a magistrate judge, I have not found that there have been restrictions such that I am not able to fashion the kind of relief that I feel is appropriate. And I do believe that there are certainly provisions--I am not familiar with the entire Act, but I do believe there are provisions that are---- Senator Thurmond. Speak in your loud speaker. This is a big room. Judge Hamilton. I am sorry. You can't hear me, Mr. Chairman? Senator Thurmond. Speak in your loud speaker. That is all. Anything else you got to say? Judge Hamilton. No. Judge Hunt. I agree, I think generally it has been beneficial for the administration of justice. I don't think any limitations put there have acted to remove or deny anyone the rights that they should have either under the Constitution or the statutes. Senator Thurmond. Professor Lynch, in a February 1998 Washington Post editorial, you wrote, ``Some laws (simple possession of marijuana) are politically controversial. Others (unauthorized commercial use of Smoke Bear) are just silly. We don't really expect all these laws to be enforced to the hilt.'' Do you have any concerns about current Federal drug laws, and would you have any reluctance to impose them as a judge? Mr. Lynch. No, Mr. Chairman, I have no concerns about the legitimacy or the importance of our current Federal drug laws. As a Federal prosecutor for 5 years, both as a line prosecutor and as chief of the Criminal Division of the United States Attorney's office that brought numerous, significant narcotics cases, I have been honored to be a foot soldier, as it were, in the war on drugs, and I think that is an important public policy. I certainly would have no difficulty in enforcing those laws as a judge. The reference that you refer to is actually a very brief excerpt from a very short article, which is not about drugs at all. It was about the independent counsel statute, and I was attempting to illustrate the point of the discretion of the executive with respect to enforcement of different kinds of laws. Senator Thurmond. Professor Lynch, you have been critical of the power of the Federal Sentencing Commission and have referred to the Sentencing Guidelines as a penal code. What is your view of the Sentencing Guidelines, and could you strictly follow them as a judge? Mr. Lynch. I have always been a supporter of the concept of Federal Sentencing Guidelines. Back when I was still a law student, more than 25 years ago, I read when it came out Judge Marvin Frankel's book on sentencing, which I think was extremely influential and extremely correct in arguing that it was disgraceful that Federal judges should be able to apply each their own philosophy of sentencing and not follow any common rules of regulations. I have supported the concept of sentencing guidelines and, once again, in my career as a prosecutor, in the latter incarnation when I was chief of the Criminal Division, that was during the period, the early period of the Federal guidelines, and once again, I had no trouble in enforcing those laws and in attempting to persuade judges to follow the guidelines. And I expect I would do the same. To the extent I have been critical of aspects of the sentencing guidelines, of course, any of us, if we were members of the Sentencing Commission, might urge slightly different guidelines. But the Congress has delegated the task of writing sentencing guidelines to the Commission, not to Federal judges, and it is up to the Commission to set the guidelines and it is up to judges to apply them as they are written. Senator Thurmond. Professor Lynch, in a symposium in June 1992, you stated that the sentencing guidelines, ``have put an end to the judge's discretion'' and haveenhanced the power of the prosecutor. Is it your view that the guidelines provide too little discretion for judges and need to be significantly changed? Mr. Lynch. No, Mr. Chairman, I don't think that the guidelines need to be significantly changed with respect to the discretion given to Federal judges. I think that it is possible that some of them might be more flexible than the ones as they are written now, though, as I have said before, it is up to Federal judges to follow them regardless of their opinion with respect to those guidelines. I think it is true that the guidelines and the existence of the guidelines have shifted significant power to Federal prosecutors. I exercised that power in the interest of law enforcement when I was a Federal prosecutor, and I would be obliged to defer to that discretion and enforce the law as it is written to those cases the Federal prosecutors would bring before me if I were confirmed as a judge. Senator Thurmond. Professor Lynch, in a tribute to Justice Brennan in the Columbia Law Review in 1997, you wrote, and I quote, ``Justice Brennan's belief that the Constitution must be given meaning for the present seems to be a simple necessity.'' Do you believe that seeking out the original meaning of the Constitution is not the proper approach to constitutional interpretation? Mr. Lynch. I believe, Mr. Chairman, that the starting place in interpreting the Constitution is with the language of the document. As with legislation passed by the Congress, it is the wording of the Constitution that was ratified by the people and that constitutes the binding contract under which our Government is created. In attempting to understand that language, it is most important to look to the original intent of those who wrote it and the context in which it was written. At the same time, with respect to many of those principles, the Framers intended to adopt very broad principles. Sometimes the understanding of those principles changes over time. Senator Thurmond. Now, the following questions are for all the nominees. I will start here and you give your answer to the same question on down the line. Do any of you have any personal objections to the death penalty that would cause you to be reluctant to impose or uphold a death sentence? Judge Dawson. The Constitution anticipates the death penalty under certain circumstances, and I have no personal feelings which would interfere with my duty to follow the law. Senator Thurmond. If you could just answer yes or no, it would save time. Mr. Garaufis. No, I have no feelings---- Judge Hamilton. No. Judge Hunt. No. Mr. Lynch. No, Mr. Chairman. Senator Thurmond. That is the way to do it. [Laughter.] Senator Schumer. The voice of experience has spoken. Senator Thurmond. What is your view of mandatory minimum criminal sentences? And would you have any reluctance to impose them as a judge? Judge Dawson. I have heard from judges who impose mandatory minimum sentences under the Federal guidelines that they are helpful. I have as a lower court judge had minimum sentences in many types of cases and have always imposed those, and I would have no problem following the minimum sentencing guidelines. Mr. Garaufis. I have no objection to them, and I would have no trouble imposing them. Judge Hamilton. I have no objection to them, and I would have no trouble imposing them. Judge Hunt. I can say ditto, Mr. Chairman. I have no difficulty with them. I think they serve a useful purpose. I have no difficulty in imposing them. Mr. Lynch. It is for the Congress to decide what is the punishment that should be applicable to violations of Federal criminal law, both in terms of maximums and, if the Congress thinks it is necessary, mandatory minimum sentences. Where that is the law, that would be the obligation of a judge to follow, and I have no objection or difficulty in doing so. Senator Thurmond. Next question, to be answered by all of you. It is my view that judges should have judicial temperament. I have seen some judges on the bench show anger and disrespect, which I think is a great mistake. That is coming from me. It is my view that judges should have judicial temperament. The more power an individual has, the more courteous he or she should be. I used that sentence years ago, and I still think it is sound. Do you agree with that? Judge Dawson. Mr. Chairman, yes, I agree with that. Mr. Garaufis. Mr. Chairman, I agree wholeheartedly with it. Judge Hamilton. I agree wholeheartedly with it. Judge Hunt. Me, too. I think it is very important, Mr. Chairman, for a judge to be polite, considerate in his dealings. Mr. Lynch. A judge should set an example of civility in the courtroom and certainly should show respect for all litigants and their lawyers. Senator Thurmond. Probably no one in our society has more power over the lives of individuals than a Federal judge, so it is especially important that someone in this role be courteous and civil. Do you agree? Judge Dawson. Yes, sir, I do agree with that. Mr. Garaufis. Yes, sir. Judge Hamilton. Yes. Judge Hunt. Absolutely. Mr. Lynch. Yes, sir. Senator Thurmond. Senator Schumer. Senator Schumer. Mr. Chairman, as usual, you have covered the waterfront well. I have no questions, and I congratulate all five of our nominees, particularly the two from New York, on a job well done. Senator Thurmond. I believe we have completed the questions for this panel, so you are now excused. Judge Dawson. Thank you, Mr. Chairman. Mr. Garaufis. Thank you, Mr. Chairman. Judge Hamilton. Thank you. Judge Hunt. Thank you. Mr. Lynch. Thank you, Mr. Chairman. Senator Thurmond. Mr. Marshall, come to the desk. Come have a seat. We will now consider the nomination of Mr. Donnie Marshall to serve as Administrator of the Drug Enforcement Administration, a position that is at the forefront of America's war on drugs. Mr. Marshall, who has served as Acting Director since last year, enjoys the impressive distinction of being the first person to have risen through the ranks to become the Administrator. He began his career in Federal law enforcement in 1969 as a special agent for the predecessor agency of the DEA, and since then has served in almost every capacity of the agency, in both domestic and foreign assignments. In his many positions, he has distinguished himself as a hard-working and dedicated public servant. Unquestionably, his wealth of experience and intimate knowledge of the DEA will serve him well in this capacity. Crime and violence skyrocketed in the United States over the past several decades. Drug use among teenagers almost doubled during the first 5 years of the Clinton administration. While teen drug use has leveled off in the last few years, as has other types of crime, it still remains at an unacceptably high level. The drug cartels are creative in finding additional routes to traffic drugs, such as the Caribbean, or finding new ways to promote drug abuse, most recently with the Internet. The DEA must also be creative and dynamic in its response. The agency must maintain itself as the lead Federal agency in domestic drug law enforcement and should continue to vigorously pursue the international drug syndicates. Our Federal drug policy should never de-emphasize the importance of prosecuting offenders and disrupting the supply of drugs, both of which are key to DEA's mission. The DEA cannot do this job alone. They must enlist the assistance of other law enforcement agencies and should improve interagency cooperation both domestically and in the international environment. I am pleased to welcome Mr. Marshall, and I look forward to discussing these important issues with him. Mr. Marshall, please stand and raise your right hand. 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. Marshall. Yes, I do. Senator Thurmond. Have a seat. If you have an opening statement, you have an opportunity now to make it. TESTIMONY OF DONNIE R. MARSHALL, OF TEXAS, TO BE ADMINISTRATOR, U.S. DRUG ENFORCEMENT ADMINISTRATION Mr. Marshall. I do, Mr. Chairman, and I will be brief. I want to thank you, first of all, for the opportunity to appear hear and be considered for what I think is one of the most vital jobs in our country at this point in our history. I also want to thank you, Mr. Chairman, and the members of this committee for all of the cooperation that you have extended to DEA and to me personally during the last several years that it has been our pleasure to work together. I have devoted most of my adult life to the cause of reducing drug abuse. I became interested in public service very early in my life, partly as a result of the example set by my father, who was a Department of Agriculture employee helping farmers in the poorest county in Texas. I worked very early in my life as a firefighter in East Texas, and it was during that time that I became interested in law enforcement. I got interested, Mr. Chairman, specifically in drug law enforcement because I saw drugs ruin the lives of two close friends of mine, a high school friend and a college friend. The high school friend was the son of a doctor in the town where I grew up, and he lost his own dream of becoming a doctor because he began using marijuana and cocaine. The college friend began using heroin and, after a short time, literally disappeared from the face of the Earth, and neither his family nor his friends know what happened to him to this day. So to me, Mr. Chairman, the issue of drug abuse and drug trafficking has always been a very personal thing, and I have become more intensely dedicated to this cause during my 30-year career as I have seen the violence and human tragedy associated with drugs and as I have watched my own children grow up and see the temptations and the choices that they are faced with every single day. Now, my career with DEA has been very demanding, but it has also been very rewarding. It would not have been possible for me to pursue this career without the love and support of my wife and our three children. No law enforcement officer can do his or her job effectively without the support of their family, and I think my family is symbolic of all of the law enforcement families throughout America at all levels. Our families, our spouses, our children are really the real heroes of law enforcement in our country, and Senator Hutchison was kind enough to introduce my family in the beginning, so I will not ask them to stand again at this point. DEA has been an effective force, I believe, Senator, in this country for many, many years. We have had many enforcement successes. We have also been a leader in demand reduction and education and prevention. And drug abuse in this country is roughly half what it was at its peak in 1979 and 1980, and I believe that DEA has contributed to that reduction in many major ways, both in our law enforcement role and in demand reduction. And I am proud of those accomplishments. But drug abuse and drug crime are still far too high. As Senator Hatch referred to in his opening statements, many categories of drug abuse have been rising again since the early 1990s, drugs like methamphetamine, heroin, ecstasy, and marijuana, which I believe is a gateway to many of the others. Drugs are far more available in rural and small-town America today than they have ever been, and criminal organizations based in Mexico, Colombia, Dominican Republic, and other countries are far wealthier and more violent today than at any other time in our history. So, Mr. Chairman, we have many challenges to meet, and challenges that I want to help our country meet, and challenges that I believe we can successfully meet. My vision for DEA is to help further reduce that drug use and availability of the drug crime and the drug violence that goes along with that, using a number of different approaches. We have to use and enhance our traditional law enforcement effort. We have to meet the growing technologychallenges as traffickers themselves become more sophisticated. We have to be effective in recruiting, training, and retaining a skilled and dedicated workforce. And we have to enhance our cooperation with other law enforcement agencies at all levels. Having done that, Mr. Chairman, I believe that we then have to build upon our law enforcement successes through DEA's leadership in the demand reduction and community action arena. And, finally, in order to successfully attack the problem on those fronts, we have to be successful in maintaining the public trust and confidence in DEA and in our mission, because without the trust and confidence of the American people, we cannot succeed, but with their cooperation, we will not fail. And the 9,000 employees of DEA are very brave and dedicated and talented men and women, and they are men and women who have earned and deserve the respect and gratitude of the American people. So, in closing, Mr. Chairman, I want to thank this committee again for your support and your assistance in the cause of drug law enforcement. I spoke earlier of the need for the support of the American people, but equally important is the need for the support of this committee, the entire Senate, and your colleagues in the House. And I thank you for that support. Together, Mr. Chairman, I believe that we have made a difference, and I believe that we can make a greater difference in the future. Thank you. Senator Thurmond. Thank you. Questioning by Senator Thurmond Mr. Marshall, the Internet is increasingly being used as a vehicle for committing many types of crime, including drug crime. If confirmed, what steps will you take to get your agency involved in combatting drug trafficking and drug sales over the Internet? Mr. Marshall. Mr. Chairman, we have already begun doing a number of things, and I hope to enhance those efforts in the future. We have begun actually in several of our field divisions conducting investigations into actual instances of drug sales over the Internet or offers of drug sales over the Internet. We have set up within DEA a computer forensics unit, and we need to expand on that. And in our future budget submissions, we are hoping to get approved additional resources for that. But you are absolutely right. We must do more. We have already begun those efforts, and I will enhance those efforts in the future. Senator Thurmond. Last year, the General Accounting Office reported that the DEA has no annual mid-range or long-range measurable performance targets for disrupting and dismantling drug-trafficking organizations. This makes it more difficult to assess the agency's overall effectiveness. How is the DEA working to establish performance targets? Mr. Marshall. We have begun working on that issue, Mr. Chairman, and we are very close to publishing a strategic management plan which does, in fact, contain performance measures of effectiveness. We started with a vision that I prepared for DEA. We then prepared the strategic management system, and it does contain those performance measures, and I hope to be able to have that published within the next 30 to 60 days. Senator Thurmond. What drug organizations constitute the major and emerging threat in narcotics trafficking today? And how are you planning to address them? Mr. Marshall. There are many organizations that constitute that threat, Mr. Chairman. Right now I have to say that the drug organizations based in Colombia, Mexico, and the Dominican Republic provide--constitute the major threat to the United States, and particularly the organizations based in Mexico. Because of their alliance with the Colombian drug producers, they have been able to move into markets into the United States and create new markets into the United States in smaller and medium-size communities' markets where heretofore they had not been. They are very wealthy. They are very violent. And we plan to attack these organizations as we have done very successfully recently both in their cells inside the United States and within investigations against their command and control structures in these foreign countries. We have done that very successfully in Colombia. We have not been quite as successful in Mexico and some of the other countries. But we need to continue, Mr. Chairman, attacking the command and control structures of these organizations, bringing them to justice in the United States. Senator Thurmond. How would you characterize drug trafficking that either originates in or is transmitted through the People's Republic of China? And how cooperative is that nation in working with your agency? Mr. Marshall. There has been an increase in recent years in heroin trafficking both in China and transiting through China. I believe on the basis of the best information that we have that China has a growing heroin addiction problem. We have recently, as you may know, opened a DEA office in the People's Republic of China. We have early indications that they are very cooperative to this point. We have a lot of work to do in China. Our agent has only been there for about 6 months, so we are learning as we go. But we plan to continue to increase those efforts, and I believe that that will be a productive venture. Senator Thurmond. It is my understanding that the DEA is having difficulty getting agents to accept assignments in Puerto Rico. Would making Puerto Rico an overseas assignment for DEA agents help you meet those trafficking needs in this territory? Mr. Marshall. I think that would be, Mr. Chairman, one of the measures that would help us staff Puerto Rico. There are many impediments to that, and it would perhaps require legislative action, and it is really a very complicated issue which would take quite a few minutes to address completely. But we will work with your staff and with this committee to see if we can fully define for you the measures that we might need to take. Senator Thurmond. I am concerned that the entire Caribbean area, including Haiti and Puerto Rico, are becoming an increasingly attractive avenue through which to smuggle cocaine and other drugs to American soil. Do you believe that drug trafficking in the Caribbean is increasing? And what is the DEA doing to address this emerging threat? Mr. Marshall. There are some signs, Senator, that the traffic is increasing through the Caribbean. The predominant route for South American Colombian products is still through Mexico. But we do see that possible shift into the Caribbean. And we are doing many things in the Caribbean. We have recently concluded a couple of specialoperations, Operation Columbus and Operation Conquistador, which were very successful in terms of not only in their enforcement results--we arrested a number of major traffickers and seized large quantities of drugs--but what was more significant about this is that we pulled together in those operations over 26 Caribbean, Central American, and South American countries to work together and coordinate their enforcement efforts. So that is one of the things that we are doing. We can increase those kinds of efforts more in the future. We are continuing to try to build the capabilities of police in places like the Dominican Republic, Haiti, and really all of the countries in that region. We are conducting training for them. We are sharing intelligence. We are providing equipment. We are doing any number of things, Mr. Chairman, and I believe that we are prepared to meet that challenge if we see a major shift back into that area. Senator Thurmond. I have received reports that there is a lack of coordination among the agencies involved in establishing a strategic for combatting drug trafficking in the arrival zones. Do you believe that additional steps should be taken to make enforcement efforts at the arrival zones more cohesive and less duplicative? Mr. Marshall. Additional cooperation and coordination mechanisms really are always needed. We can never have as much or sufficient amount of cooperation and coordination, and, yes, I do think that we can do more in coordinating the activities in the arrival zone. I have recently attended a number of meetings with my counterparts from Customs, Coast Guard, and other agencies, and we are in the process of establishing some different and enhanced procedures to do that better cooperation, Mr. Chairman. Senator Thurmond. Problems have existed for many years with criminal influence and corruption in law enforcement in Mexico, as demonstrated by the recent murder of the police chief in Tijuana. What is the current state of cooperation by Mexican authorities with U.S. law enforcement? And what is being done to protect DEA agents who work in Mexico? Mr. Marshall. Mr. Chairman, that is, I think, an appropriate and very--the question of the moment, I think, because I commented earlier about the Mexican traffickers being the most significant threat that we see in the country right now. What we see with regard to law enforcement cooperation, Mr. Chairman, is a small cadre, a nucleus of law enforcement people in the Mexican attorney general's office that we can work with, that we do work with, and we work with reasonably effectively. Beyond that small nucleus, however, the picture is not very bright. The law enforcement results from Mexico in the last year have been minimal. There have been no extraditions of major drug fugitives back to the United States. Corruption continues to play a major role in Mexico. And with the exception of the small core of people that we work with, it is not really a bright picture at the moment, Mr. Chairman. And I apologize for not having better news with regard to that issue. Senator Thurmond. In the 1990s, the DEA made domestic drug trafficking a high priority. In this regard, the DEA has devoted more resources to street-level narcotics through mobile enforcement teams. Has this domestic emphasis hampered your ability to disrupt and dismantle major international drug organizations? Mr. Marshall. Mr. Chairman, I don't believe that it has affected our effort internationally, and I will explain why. All of our enforcement efforts, domestic and international, are very closely intertwined. We look at the drug traffickers as a continuum group of people who do not recognize international borders. And we have to ensure that we identify the entire organization, from the sources in Peru, Bolivia, Colombia, and other places, right down to the street level here in the United States. And what we have tried to do is gather intelligence on those organizations. Using that intelligence we try to interdict the drugs that they are bringing in as well as investigate the leaders of these organizations. And at each step of the cycle, information and intelligence feeds interdiction. That in turn feeds investigations. Investigations then allow us to arrest the traffickers, the leaders, both in the United States and in foreign countries, like we did recently very successfully in Operation Millennium. So I do not believe that it is hurt our efforts domestically because it is all so--or internationally, rather, because it is all so closely intertwined. Senator Thurmond. A typical large metropolitan area in the United States has many law enforcement agencies investigating narcotics crime, including the DEA, the FBI, INS, IRS, the Customs Service, and State and local police forces. Can more be done to improve cooperation among all of these agencies, including the sharing of resources and intelligence information? Mr. Marshall. Certainly more can be done, Senator, and we are, in fact, looking right now to enhance our intelligence- sharing capabilities. And we are doing that through such things as the high-intensity drug-trafficking area intelligence centers. We are trying to do that through DEA's own national drug pointer index system. We are trying to do that through the establishment of a counter-drug intelligence executive secretariat. We always need to ensure that we have that intelligence gathering and assessment and sharing mechanisms finely tuned, and I assure you that I will continue to give that my highest attention and highest priority in the event that I am confirmed as the head of DEA. Senator Thurmond. The failure to adequately share information regarding domestic drug intelligence has long been a problem. Recently, the Office of National Drug Control Policy issued a counter-drug intelligence plan to try to address this problem. Do you think this plan will significantly improve cooperation and coordination of intelligence among agencies? Mr. Marshall. I believe that that is an element that can contribute positively toward the effort, and the first chairman of that counter-drug secretariat is a senior executive service member, a special agent of DEA. We are in the process of organizing that and setting that up and defining our procedures, and, yes, I do believe that will enhance our abilities. Senator Thurmond. A Columbia University study found that drug use among teenagers is much higher in rural areas than in urban areas, especially for drugs such as meth, crack cocaine, and cocaine. Are you concerned about this high rate of drug use by rural teenagers? And how should we address this? Mr. Marshall. I am very concerned about that, Senator, and we need to address it in a number of ways. We need, first of all, I think, to utilize the mobile enforcement teams that we have used so effectively over the last several years to attack drug violence in many of those communities. We have a new program that we just have begun over the last year or so called the regional enforcement teams. We have one of those in North Carolina. We have one of those in Iowa. And we are creating a third in Nevada. What those teams will do is they will also be mobile, and they will go into these smaller and medium-size communities to help out with drug problems in those places. However, I believe that we need to further establish a permanent presence in a lot of those places, and we will be requesting additional resources in our 2002 budget cycle to do that. I think we need to and we should help out those kinds of communities much more than we have been able to thus far. Senator Thurmond. Ecstasy and other so-called club drugs are becoming more and more popular among teenagers today, and these drugs are being seized in record numbers by law enforcement. Do you consider ecstasy to be a serious threat? And how is the DEA addressing this dangerous drug? Mr. Marshall. There is no question, Mr. Chairman, it is a serious threat, and it is a threat that we have recognized for some time now. The way we are addressing this is really on a number of fronts. This drug right now is manufactured predominantly outside the United States, predominantly, actually, in Europe. And we are working with our counterparts there to see if we can take measures to limit the actual manufacture of it. We have entered into partnerships with State and local law enforcement agencies, with the U.S. Customs Service, and we have been very, very effective recently in investigating some of the larger organizations that are responsible for bringing ecstasy into our country. We recently closed out an operation called Operation Rave in which we identified and immobilized a major ecstasy- trafficking organization. From that investigation we learned a lot about how this trafficking in that drug works, and you can look for increased and more successes in that regard in the future. Senator Thurmond. Mr. Marshall, I would like to thank you for being here today. 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I would like to place into the record copies of the articles by Professor Lynch that I referenced in my questions. [The articles follows:] [GRAPHIC] [TIFF OMITTED] T3031A.534 [GRAPHIC] [TIFF OMITTED] T3031A.535 [GRAPHIC] [TIFF OMITTED] T3031A.536 [GRAPHIC] [TIFF OMITTED] T3031A.537 [GRAPHIC] [TIFF OMITTED] T3031A.538 [GRAPHIC] [TIFF OMITTED] T3031A.539 [GRAPHIC] [TIFF OMITTED] T3031A.540 [GRAPHIC] [TIFF OMITTED] T3031A.541 [GRAPHIC] [TIFF OMITTED] T3031A.542 [GRAPHIC] [TIFF OMITTED] T3031A.543 [GRAPHIC] [TIFF OMITTED] T3031A.544 Senator Thurmond. I ask that any follow-up questions be submitted to the committee by close of business on Friday of this week. If there is nothing else to come before the committee, the committee is now adjourned. [Whereupon, at 3:21 p.m., the committee was adjourned.] Questions and Answers ---------- Responses of Kent J. Dawson to Questions From Senator Smith Question 1. Are there any questions that you feel are off limits for a Senator to ask? Answer 1. No, a Senator may ask any question he or she believes is consistent with his or her Constitutional role of Advice and Consent. Question 2. 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 the precedent to the case before him or her? Answer 2. No, a District Court Judge and Judge and U.S. Court of Appeals Judge should always follow Supreme Court precedent no matter what his or her personal opinion. Question 3. If you were a Supreme Court Justice in 1856, what would you have held in Dred Scott v. Sandford, U.S. (19 How.) 393? Answer 3. It would be difficult to say how I would have ruled in Dred Sciott if I were a Supreme Court Justice, without being present at the time, having the benefit of briefs, hearing oral argument, reviewing all of the evidence and consulting with other judges. Question 4. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), the court apparently held, as you well know there were eight separated 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 4. Dred Scott was overturned by the 13th and 14th Amendments and is no longer considered binding precedent. Question 5. 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 H02.) 393 (1856)? Answer 5. Yes, a District Court Judge is always bound to follow precedent. Question 6. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 6. It would be difficult to say how I would have ruled in Plessy v. Ferguson if I were a Supreme Court Justice, without being present at the time, have the benefit ofbriefs, hearing oral argument, reviewing all of the evidence and consulting with other judges. Question 7. 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 black and white passengers, imposing criminal penalties for violations by railway officials. How should that precedent be treated by the Courts? Answer 7. The case is not considered good precedent, because it was overturned or distinguished in several cases, including Brown v. Board of Education, 347 U.S. 483 (1954). Question 8. 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 8. It would be difficult to say how I would have ruled in Brown v. Board of Education if I were a Supreme Court Justice, without being present at the time, having the benefit of briefs, hearing oral argument, reviewing all of the evidence and consulting with other judges. Question 9. 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 the precedent be treated by the Courts? Answer 9. This case is still good precedent and must be followed. Question 10. If you were a Supreme court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer 10. It would be difficult to say how I would have ruled in Roe v. Wade if I were a Supreme Court Justice, without being present at the time, having the benefit of briefs, hearing oral argument, reviewing all of the evidence and consulting with other judges. Question 11. 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 11. Lower court judges are obligated to follow the holding in Roe v. Wade, majority opinion as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Question 12. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 12. I would follow the law and precedent and decide cases on the facts before me without regard to personal views, and I have no personal views that would interfere with my obligation to follow the law. Question 13. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 13. The Supreme Court has found the death penalty to be constitutional, and I have no personal views which prevent me from following this precedent or any other precedent of the Supreme Court. Question 14. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 14. The Second Amendment to the Constitution addresses the right to bear arms. If faced with a Second Amendment question as a District Court Judge, I would interpret it as I would any other Constitutional provision by looking to its plain language and examining relevant precedent, without regard to any personal views, and I have no personal views that would interfere with my obligation to follow the law. Question 15. 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 15. Casey provides that state regulations cannot create undue burdens on a woman's right to choose. As a district Court Judge, I would be bound to follow Casey and I have no personal views that would interfere with my obligation to follow the law. Question 16. 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 16. I do not have any opinion on this issue which would interfere with my ability to consider all of the facts and law in reaching a decision. Question 17. Do you believe that the death penalty is constitutional? Answer 17. Yes, the Constitution contemplates and provides for the death penalty and the Supreme Court has found it constitutional. Question 18. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 18. The Supreme Court in Planned Parenthood v. Casey, explains the circumstances under which it will consider overruling a prior decision. Those factors include, among others, an evaluation of whether the prior ruling has proved to be unworkable, whether reliance has been formed which would create a hardship and whether passage of time or changes in legal principles have robbed the old rule of significant application or justification. Question 19. 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 19. In interpreting a statutory provision, a judge should begin with the plain language of the statute, followed by a review of precedent and analogous decisions. Legislative intent may be considered in cases where a statute is ambiguous. However, judges should be skeptical of legislative history because it is hard to determine whether the legislative history accounts for all of the reasons or considerations which went into passage of an enactment. ______ Responses of Kent J. Dawson 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. 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 of your own best judgment of the merits? Take, for example, the Supreme Court's recent decision in the City of Boeme v. Flores 1 where the Court struck down the Religious Freedom Restoration Act. --------------------------------------------------------------------------- \1\ 521 U.S. 507 (1997). --------------------------------------------------------------------------- Answer 2. Yes, a District Court Judge is committed to following precedent of higher courts even if the judge personally disagree with such 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. Adarand v. Pena,2 requires application of the ``strict scrutiny'' standard of review, a compelling state interest and a narrowly tailored remedy in order for such preferences to be sustained. --------------------------------------------------------------------------- \2\ 515 U.S. 200 (1995). Question 4. Are you aware of the Court's decision in Adarand v. Pena [supra], and the Court's earlier decision in Richmond v. J.A. Croson Co.? 3 If so, please explain to the Committee your understanding of those decisions, and their holdings concerning the use of race to distribute government benefits, or to make government or hiring decisions. --------------------------------------------------------------------------- \3\ 488 U.S. 469 (1989). --------------------------------------------------------------------------- Answer 4. Yes, I am aware of these decisions. I understand those cases to require that on the federal and state level, strict scrutiny be applied to race conscious affirmative action programs, and thus, to survive such scrutiny, must be narrowly tailored and further a compelling government interest. 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 follow the precedent of 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, I have no legal or moral beliefs which would inhibit or prevent me from imposing or upholding the 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 or resolving capital cases daily and expeditiously? Answer 7. Yes, these sorts of delays are too long. The federal courts should focus their resources on resolving capital cases fairly and expeditiously. Question 8. What authorities may a federal judge ultimately use in determining the legal effect of a statute of constitutional provision? Discuss how the use of each of these authorities is consistent with the exercise of the Article III judicial power. Answer 8. The Constitution, plain language of the statute, precedent, analogous cases and, as a last resort, legislative history may be used to determine such legal effect. A presumption of constitutionality must be given to such arts by Article III judges. 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 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 theimpact of each approach on the judicial power established by Article III of the Constitution. Answer 9. In my view, approaches (1) and (3) are legitimate. If by his comments Justice Brennan meant that we need to look to popular public opinion in establishing a right not previously upheld, I respectfully disagree with the approach suggested by (2). 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. I would review and follow precedent for a case not of first impression. In a case of first impression, I would give the presumption of constitutionality, review the plain language of the statute, applicable precedent and analogous cases, and as a last resort, legislative history and based on those authorities and that review, attempt to arrive at a decision that would be affirmed on appeal. Question 11. In your view, what are the sources of law and methods of interpretation used in reaching the Court's judgement 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. 749 (1965). B. Alden v. Maine, 119 S. Ct. 2240 (1999). Answer 11. Griswold, involved a state statute which made it unlawful to use any drug, article or instrument to prevent conception, and in that case the Court held that the statute was invalid because it infringed on the constitutionally protected right to privacy. To reach that result, the Court looked at ``penumbras'' and ``emanations'' of express guaranties in the Bill of Rights. In Alden v. Maine, the Court held that congressional legislation under Article I could not abrogate state sovereign immunity under the Eleventh Amendment. To reach that result, the Court looked at ``fundamental postulates'' implicit in the constitutional design. In each of the foregoing cases, the Constitution and notions of fundamental rights not expressly enumerated in the Bill of Rights were used in reaching the Court's judgment. The use of such sources has been criticized as an expansion of the power of the court. 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. Answer 12. A. Wickard v. Filburn, 317 U.S. 111 (1942). B. United States v. Lopez, 514 U.S. 549 (1995). In Wickard v. Filburn, the Court held that the Second Agricultural Adjustment Act, which imposed penalties for unauthorized planting of wheat which Filburn used on his own farm, was constitutional pursuant to provisions of the Constitution permitting Congress to regulate commerce among the states. In United States v. Lopez, the court held that the Gun Free School Zones Act, which made it a federal offense to possess a firearm in a school zone, was unconstitutional on the ground that it exceeded the authority of Congress under the commerce Clause of the Constitution. Wickard appears to have limited judicial power vis-a-vis congressional power and increased federal power vis-a-vis state power, and Lopez appears to have limited somewhat congressional power vis-a- vis state prerogatives. 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. The Constitution provides that, under the Tenth Amendment, powers not delegated to the United States by the Constitution respectively, nor prohibited by it to the States, are reserved to the States respectively, or to the people. In United States v. Lopez, the Court held that the Gun Free School Zones Act, which made it a federal offense to possess a firearm in a school zone, was unconstitutional on the ground that it exceeded the authority of Congress under the Commerce Clause of the Constitution. In Printz v. United States, the Court held that the Brady Handgun Violence Prevention Act was unconstitutional because it imposed an undue burden on local law enforcement officials. In Alden v. Maine, the Court sustained the right of States to sovereign immunity under the Eleventh Amendment from suits brought by citizens of their own State and found that it was beyond congressional power to abrogate that immunity in the exercise of Article I powers. In Baker v. Carr, the Court found that Article III courts had jurisdiction over challenges to apportionment and that the questions presented were not non-justifiable. In Shaw v. Reno, the Supreme Court applied a strict scrutiny standard of review for redistricting plans which rely on race and thus required a showing of compelling state interest for a state to treat some of its citizens differently from others on the basis of race. In each of these cases the exercise of the power of judicial review had some affect on the division of power between the national and state governments with Lopez, Printz, Alden and Baker appearing to place limits on state apportionment by providing for judicial review of claims involving the right to vote. Question 14. Do you believe that a federal district court has the institutional expertise to set rules for and oversee the administration of the prisons, schools, or state agencies? Answer 14. No, federal district courts should rule on actual cases or controversies, and then in a very limited way; they simply do not have the institutional role or expertise in the administration of prisons, schools or state agencies. ______ Nicholas G. Garaufis to Responses of Follow-up Questions From Senator Smith Questions 1. Are there any questions that you feel are off limits for a Senator to ask? Answer 1. No. Senators may ask any questions in the exercise of their responsibilities under the ``advice and consent'' clause. Question 2. 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 2. No District Court judges and Circuit Court judges are obligated to follow the precedent established by decisions of the Supreme Court. Question 3. 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 3. The Dred Scott decision was overruled by the Thirteenth and Fourteenth Amendments to the Constitution. I cannot say without benefit of the briefs, arguments and court deliberations how I would have decided the case at the time. Question 4. In Dred Scott v. Sanford 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 4. The Dred Scott decision is no longer precedent because it was nullified by subsequent constitutional amendment, which the federal courts are obligated to follow. Question 5. 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 5. In 1857, as a District Court judge, I would have been obligated to follow the Dred Scott decision as binding precedent. Question 6. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 6. Plessy v. Ferguson was specifically overruled by Brown v. Board of Education, 347 U.S. 483 (1954), which is now binding precedent. District Court judges are obligated to follow Brown v. Board of Education. I cannot say without the benefit of the briefs, arguments and court deliberations how I would have decided the case at the time. Question 7. 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 7. Plessy v. Ferguson has been overruled and has no precedential effect. Question 8. 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 8. It is impossible to conjecture as to how I might have voted as a Supreme Court Justice in 1954, but I would like to believe that I would have ruled as the unanimous Court did. I cannot say without benefit of the briefs, arguments and court deliberations how I would have decided the case at the time. Question 9. In Brown v. Board of Education, 347 U.S. 483 (1954), the court held that the segregation of children 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 9. The courts must give Brown v. Board of Education and all other Supreme Court decisions which have not been overruled or modified full force and effect in applicable cases that come before them. Question 10. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer 10. It is impossible to know how I would have ruled in Roe v. Wade without the benefit of the briefs, argument and conference with my judicial colleagues. Question 11. 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 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 to the Justice Rehnquist dissent in that case? Answer 11. The lower courts are obligated to give the holding of Roe v. Wade, as modified to Planned parenthood v. Casey, 505 U.S. 833 (1992), and all other Supreme Court decisions that have not been overruled or modified, full force and effect in applicable cases that come before them. Question 12. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 12. If I were confirmed as a District Court judge, I would be obligated to follow the precedent of the Supreme Court and the federal appellate courts irrespective of any personal views on this or any other subject that may properly come before me. Question 13. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 13. I have no personal views that would interfere with my obligation to follow the Supreme Court's precedents upholding the death penalty. Question 14. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 14. I have no personal views that would interfere with my ability to follow precedent on Second Amendment or other cases. A District Court judge's only role is to apply the Constitution, statutes and case law of the Supreme Court and the Court of Appeals. Question 15. 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 15. I have no personal views that would interfere with my ability to follow precedent including the Supreme Court's holding in Casey, where the Court held that State restrictions on abortions are permitted as long as those restrictions do not impose an ``undue burden'' on a woman's right. Question 16. 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 16. I would be obligated to follow the precedent of the Supreme Court and the federal appellate courts irrespective of any personal views on this or any other subject that may properly come before me if I am confirmed as a District Court Judge. Question 17. Do you believe that the death penalty is Constitutional? Answer 17. Yes, in Greg v. Georgia the Supreme Court found the death penalty to be Constitutional. District Court Judges are obligated to follow that precedent and have no beliefs that would prevent me from following that precedent. Question 18. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 18. Under the rule of stare decisis, the Supreme Court ordinarily gives its prior decisions full precedential deference. Factors that the Supreme Court applies when considering overruling a prior decision include: whether the rule has proven to be intolerable by defying practical workability; whether special hardship would result if the case were overruled; whether related principles of law have developed such that the old rule is no more than a remnant of an abandoned doctrine; and whether facts have so changed as to have robbed the old rule of significance, applicability or justification. Question 19. Do you consider legislative intent and the testimony of elected officials in debate leading up to passage of an act? And what weight do you give legislative intent? Answer 19. When a court is required to interpret a statute to decide a case properly before it, should first look to the specific statutory language to ascertain the enactment's meaning and effect. If further assistance is needed in determining the statute's meaning and effect, it may be helpful to search the legislative record. As part of that process, a court should examine all the legislative activities that led the legislature to the statute's enactment. However, it is important to do that with caution since the legislative record may reflect only the views of one or a handful of legislators. It is also critical to consider the decisions of the federal and state appellate courts regarding statutory construction so that a court's actions will be procedurally consistent with precedent. ______ Responses of Nicholas G. Garaufis 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 to disagree with such precedent. Question 2. How would you rule if you believe the Supreme Court or the Court of Appeals had seriously erred in rendering a decision? Would you nevertheless apply that decision or your own best judgment of the merits? Take, for example, the Supreme Court's recent decision in the City of Boerne v. Flores, 521 U.S. 507 (1997), where the Court struck down the Religious Freedom Restoration Act. Answer 2. A District Court judge is obligated to follow precedent even if he or she believes that the Supreme Court or the Court of Appeals erred, and if confirmed I would do so. 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, layoffs), college admissions, and scholarship awards and the awarding of government contracts. Answer 3. The Supreme Court has established the Constitutional standards by which the us of race or national origin-based preferences in such areas as employment decisions, college admissions and scholarship awards and the awarding of government contracts shall be tested. If confirmed by the Senate as a federal District Court judge, I will follow the precedent established by the Supreme Court in any case that properly comes before me for adjudication. The standard imposed by the Supreme Court for such cases was decided in Adarand v. Pena, 515 U.S. 200 (1995). The Court imposed the ``strict scrutiny'' test, requiring that such programs be narrowly tailored to advance a compelling governmental interest. The Supreme Court has also established that gender-based preferences are subject to intermediate scrutiny. Question 4. Are you aware of the Supreme Court's decision in Adarand v. Pena, 515 U.S. 200 (1995), and the Court's earlier decision in Richmond v. J.A. Croson Co, 488 U.S. 469 (1989)? If so, please explain to the Committee your understanding of those decisions, and their holdings concerning the use of race to distribute government benefits, or to make government contracting or hiring decisions. Answer 4. I am aware of the Supreme Court's decision regarding the use of race to distribute government benefits or to make government contracting or hiring decisions in Adarand v. Pena and Richmond v. J.A. Croson Co. In Croson, the Supreme Court held that the Fourteenth Amendment requires strict scrutiny of a race-based action by state and local governments. Adarand extended the strict scrutiny requirement to all race-based programs (federal, state and local). Under the ``strict scrutiny'' test, the Court mandated that any such programs would have to be narrowly tailored to advance a compelling governmental interest. Question 5. Regardless of your personal feelings on these issues, are you committed to following precedent of higher courts on equal protection issues? Answer. Yes, I am committed to following the precedent of higher courts on equal protection issue. 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. I have no legal or moral beliefs that 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 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. Yes, to both questions. I believe that federal courts should focus their resources on cases that properly come before them in a fair and expeditious manner, including capital cases. 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 each of these authorities is consistent with the exercise of the Article III judicial power. Answer 8. A federal judge should follow precedent in determining the legal effect of a statute or constitutional provision and should examine the provision to determine its meaning. Precedent requires that statutes be presumed to be constitutional. To the extent that a provision's application to a specific factual situation is not clear from its language, a federal judge may look to the provision's legislative history to federal and state court decisions interpreting similar provisions and all other means of constitutional and statutory construction authorized by the Supreme Court and appellate courts. 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 the original intent of the Framers of Constitution; (2) discernment of the ``community's interpretation'' of constitution 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 judges are required to look to the Constitution itself for instruction, including the plain meaning of the text and the original intent of the Framers. Rather than relying on the views of any particular commentator on constitutional construction, federal judges should look to the decisions of the Supreme Court and the federal appellate courts for guidance when interpreting the Constitution. Should a constitutional provision be ratified pursuant to Article V, federal judge should give it the deference and effect to which all constitutional provisions are entitled. To the extent that Justice Brennan is advocating ``community interpretation'' of constitutional text as a legitimate basis to establish a right not in the Constitution, to the extent he believes it is a valid basis for establishing a right, I believe it is not appropriate for judges to take such an approach to establish such a right. Question 10. How would you, if confirmed, analyze a challenge to the constitutionality of a statute in a case that was not one of the first impression? In a case of the first impression? Answer. All statutes are entitled to the presumption of constitutionality. Consistent with that principle, a judge should analyze cases involving statutes as follows. In a case that is not one of first impression, a judge should apply precedent of the Supreme Court and the federal and state appellate courts. In a case of first impression, a judge should, consistent with the presumption of constitutionality of legislative enactments, examine the statute by applying the analysis used by federal and state appellate courts in analyzing statutes with similar construction provide analogous precedent. Question 11. 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), B. Alden v. Maine, 119 S. Ct. 2240 (1999). Answer 11. In these cases, the Supreme Court has interpreted the Constitution to protect rights or immunities that are not specifically enumerated in the Constitution. The Supreme Court ruled in Griswold v. Connecticut that the implied right of privacy was entitled to full constitutional status. The Supreme Court has addressed the scope of Eleventh Amendment protection of sovereign immunity in Alden v. Maine. In that case, the Court looked to history, precedent, practice and the structure of the Constitution to find no compelling justification for a statute limiting a state's immunity from suit in its own courts. A District Court judge is obligated to follow these precedents when they are applicable. Question 12. Compare the following cases with respect to the 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. These two cases demonstrate the sensitivity of the Supreme Court to federal legislation, premised on the Commerce Clause, that affects or eliminates state and local control. In United States v. Lopez the Court recognized the limited local nature of the activity which Congress sought to regulate (carrying a gun in a school zone) and found it not to be an economic activity that could be regulated under the Commerce Clause. But in Wickard v. Filburn, the Court decided that the local conduct at issue (overproduction of wheat in violation of a federal statute) could in the aggregate substantially affect interstate commerce and therefore could be the subject of federal legislation under the Commerce Clause. If confirmed as a District Court judge, I would follow the precedent as set forth those cases when applicable. 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). E. Baker v. Carr, 369 U.S. 186 (1962). F. Shaw v. Reno, 509 U.S. 630 (1993). Answer 13. These cases recognize that the division of powers is critical to the governance relationship between the States and the federal government. The Supreme Court has noted that the States' proximity to their citizens places them in a unique position to address historically local concerns. If confirmed as a federal district judge, I would exercise great care and sensitivity in observing the rules articulate in these cases and would follow any applicable precedent. In United States v. Lopez, the Supreme Court struck down a federal statute which interfered with an area historically left to the States to regulate. The Court found insufficient evidence that the conduct that it prohibited (possessing and carrying concealed handgun into a school zone) was of sufficient economic importance to be a valid exercise of federal legislative authority under the Commerce Clause. In Printz v. United States, the Supreme Court reaffirmed the Constitution's structual principle of dual sovereignty. The Court struck down a provision of the Brady Handgun Violence Prevention Act that obligated local law enforcement officers of each jurisdiction to conduct background checks for gun purchasers until a nationwide system became operative. The Court's decision limited the ability of the federal government to control the activities of state and local officials in an area historically left to state and local control. Alden v. Maine addressed the question of whether Congress has the authority under Article I to abrogate the sovereign immunity of the States in their own courts. The Court concluded that there was no compelling evidence to permit such a Congressional act abrogating the States' immunity. Baker v. Carr is early in a long line of cases interpreting the ``one person, one vote'' principle in legislative districting cases. The Court found the apportionment of state legislative districts to be a justiciable issue and subject to the federal courts' subject matter jurisdiction. This decision allowed courts to review claim of individual citizens about state and federal reapportionments. In Shaw v. Reno, the Supreme Court ruled that where it is alleged that a reapportionment scheme distinguishes voters solely on the basis of race, it is subject to review under the ``strict scrutiny'' test. Under this decision, districting enactments whose sole purpose is to address racial discrimination must be narrowly tailored to advance a compelling governmental interest. Question 14. Do you believe that federal district court has the institutional expertise to set rule for and oversee the administration of prisons, schools, or state governments? Answer 14. In our system of government, the executive and legislative branches have the special expertise and authority to administer such governmental entities as prisons, schools and government agencies. The executive branch operates such governmental entities, and the legislative branch provides funds and oversight. Courts do not have such expertise. ______ Responses of Phyllis J. Hamilton to Questions From Senator Smith Question 1. Are there any questions that you feel are off limits for a Senator to ask? Answer 1. No, a Senator may ask any question. Question 2. If a U.S. District Court Judge or a U.S. Court of Appeals judge concludes that a Supreme Court precedent is flatly contrary to the Constitution, are there any circumstances under which the Judge may refuse to apply that precedent to the case before him or her? Answer 2. No, a judge may not refuse to apply precedent established by the Supreme Court. Question 3. If you were a Supreme Court Justice in 1856, what would you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393? Answer 3. It is impossible to say without the benefit of having read the briefs and reviewed the record of this case and without the ability to place myself in the shoes of people living in 1856, what I would have held as a Supreme Court Justice in Dred Scott v. Sandford. Question 4. In Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), the court apparently held, as you will 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 4. Dred Scott v. Sandford, is no longer good precedent in light of the abolition of slavery by the Thirteenth Amendment and the Fourteenth Amendment's extension of citizenship to all persons born or naturalized in the United States. Question 5. 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. Sanford, 60 U.S. (19 How.) 393 (1856). Answer 5. Yes, I would be bound by the oath and mandated to follow Supreme Court precedent. Question 6. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 6. It is impossible to say without the benefit of having read the briefs and reviewed the record of this case and without the ability to place myself in the shoes of people living in 1896, what I would have held as a Supreme Court Justice in Plessy v. Ferguson. Question 7. 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 7. Plessy v. Ferguson, is no longer good precedent in light of the Supreme Court's subsequent determination in Brown v. Board of Education that separate but equal educational opportunities are unconstitutional. Question 8. 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 8. It is impossible to say without the benefit of having read the briefs and reviewed the record of this case, what I would have held as a Supreme Court Justice in Brown v. Board of Education. Question 9. 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 9. Brown is still good precedent and should be treated as such by the lower courts. Question 10. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade. 410 U.S. 113 (1973). Answer 10. It is impossible to say without the benefit of having read the briefs and reviewed the record of this case, what I would have held as a Supreme Court Justice in Roe v. Wade. Question 11. 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 11. The Supreme Court's holding in Roe v. Wade, was modified by Planned Parenthood v. Casey, is binding precedent on the lower courts. I would follow Roe, as modified by Casey, in deciding any case before me on this question. Question 12. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 12. I have no personal view on the issue of abortion that would affect in any way my ability to apply Supreme Court precedent in any case involving this issue. Question 13. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 13. I have no personal view on the death penalty that would in any way affect my ability to impose or uphold the death penalty in any case before me. Question 14. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 14. I have no personal view on the Second Amendment that would in any way affect my ability to decide issues arising under that amendment. Question 15. 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 15. the Supreme Court's holding in Casey is the law of the land, and I would follow it faithfully in reviewing any case on this issue. Question 16. 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 16. I have no personal beliefs on the issue of abortion that would in any way affect my ability to follow the law handed down by the Supreme Court. Question 17. Do you believe that the death penalty is Constitutional? Answer 17. Yes, and the Supreme Court so held in Gregg v. Georgia. Question 18. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the court? Answer 18. If I were a Supreme Court Justice, I would vote to overrule a Supreme Court precedent only rarely and only after examination of the following prudential and pragmatic considerations that have been articulated by the Supreme Court: whether the prior decision's central rule has been found to be unworkable; whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law's growth in the intervening years has rendered the rule a doctrinal anachronism; and whether the facts have so changed, or come to be seen so differently, as to have rendered the rule irrelevant or unjustifiable. Question 19. 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 19. Where the language of a statute is plain and unambiguous, resort to legislative history is unnecessary. When a statute is not clear legislative intent can be useful. However, a judge must be cautious when relying upon legislative history, because the reported history may not reflect the intent of all of the legislators or the entirety of the debate. ______ Responses of Phyllis J. Hamilton 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 the higher courts even if I may personally disagree with them. Question 2. How would you rule if you believed the Supreme Court of 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 believed that the Supreme Court or the Court of Appeals had erred in rendering a decision, I would nevertheless apply that decision because judges are obligated to follow 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 Fourteenth Amendment and federal Civil rights laws, of the use of race, gender or national origin-based preferences in such areas as employment decisions (hiring, promoting, or layoffs), college admissions, and scholarships awards and the awarding of government contracts. Answer 3. My best legal judgment on the lawfulness of race-based preferences under the Equal Protection Clause, based upon my understanding of the Supreme Court's decision in Adarand v. Pena, is that such preferences based on race or national origin are subject to the strict scrutiny test and thus, cannot survive unless they are found to serve a compelling state interest and are narrowly tailored to further that interest. The Supreme Court has found that gender-based preferences are subject to intermediate scrutiny. Question 4. Are you aware of the Supreme Court's decision in Adarand v. Penal, and the Court's earlier decision in Richmond v. J.A. Croson Co.? If so, please explain to the Committee your understanding of those decisions, and their holdings concerning the use of race to distribute government benefits, or to make government contracting or hiring decisions. Answer 4. The Supreme Court held in Adarand v. Penal, 515 U.S. 200 (1995), that the federal government's race-based set aside program for awarding highway construction contracts is unconstitutional when it is design to remedy broad-based social discrimination rather than clearly identifiable discrimination perpetuated by a government entity. Therefore, under Adaraand the strict scrutiny test must be applied to all government affirmative action programs and racial classifications upon which they are based. Under the strict scrutiny test such programs may survive only if supported by a compelling state interest and if they are narrowly tailored to further that interest. In Richomond v. J.A. Croson Co., 488 U.S. 469 (1989), the Supreme Court held that the Fourteenth Amendment requires the strict scrutiny test to be applied to any race-based action by state and local governments. 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 precedents of the higher courts on equal protection issues regardless of any personal views I may have. 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 that 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?Yes, I believe that a delay of ten years or more between conviction of a capital offender and execution is too long and that the federal courts should focus their resources on resolving 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 each of these authorities is consistent with the exercise of the Article III judicial power. Answer 8. In determining the validity of a statute or constitutional provision, judges may legitimately use, consistent with the exercise of Article III judicial power, the statutes and constitutional provisions themselves, precedent established by the higher courts, and legislative history to the extent that the intent of the legislature can be discerned from that history. 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 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 9. Article III extends judicial power to all cases arising under the Constitution, the laws and treaties of the United States and limits judicial power to actual cases and controversies. Thus, in a case in which there is an attempt to establish a constitutional right not previously upheld by a court, the plain meaning of the text of the Constitution and its Amendments and the original intent of the Framers are legitimate sources of authority. It is not entirely clear to me what Justice Brennan contemplated as the community's role in constitutional interpretation. If what he meant is that judges should decide cases in accordance with popular thought on a given subject, I would not view that as a legitimate source of authority. An amendment to the Constitution, ratified as required by Article V, however, would provide a legitimate source of authority. 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 a case that was not one of first impression, I would analyze the plain language of the statute and review precedent established by the Court of Appeals for my circuit and other circuits if none existed in my circuit and by the Supreme Court on that statute. I would also examine the constitutional provision that was implicated and the interpretations of that provision by the higher courts to determine if the original intent of the Framers could be ascertained. If the statute was not clear on its face, I would also look at its legislative history. Cases of first impression are rare. However, in such a case, I would look in addition at analogous statutes and precedent thereon. 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 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 11. The Supreme Court held in Griswold v. Connecticut, 381 U.S. 479 (1965), that a Connecticut law forbidding the use contraceptives unconstitutionally intruded upon the right of marital privacy which the Court found in a penumbra of the First Amendment. In Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme Court held that states' immunity from suit is a fundamental aspect of sovereignty they enjoyed even before the Constitution's ratification. The Supreme Court did not rely on the actual language of the Eleventh Amendment, but instead found that sovereign immunity derives not from the Eleventh Amendment, but from the structure of the original Constitution. In both cases, the Supreme Court found rights that were not expressly enumerated in the Constitution. Although the sources of the rights differed in these two cases, they both remain valid precedent that as a district judge, I would be obligated to follow. 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 (1995). B. United States v. Lopez, 514 U.S. 549 (1995). Answer 12. Wickard v. Filburn, 317 U.S. 111 (1942), concerned a challenge to the constitutionality of the amendment to the Agricultural Adjustment Act of 1938, which regulated production and consumption of homegrown wheat. The amendments provided for the assessment of a penalty on any farmer who harvested more than this allotment permitted under the Act, regardless of whether the wheat was consumed locally or shipped out of the state. The Supreme Court held that the enactment of the amendments to the Act constituted a valid exercise of the power of Congress to regulate interstate commerce because the purpose and effect of the Act was to regulate the amount of wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages. The Court held that even local activity can be regulated by Congress ``if it exerts a substantial economic effect on interstate commerce.'' United States v. Lopez, 514 U.S. 549 (1995), involved a challenge to the Gun-Free School Zones Act of 1990, which made it a federal crime to knowingly possess a firearm in a school zone. The Supreme Court reiterated its holding in Wickard--that the test for determining whether an activity is within Congress' power to regulate under the Commerce Clause is whether it substantially affects interstate commerce. Applying this test, the Court found that possession of a gun in a school zone is not an economic activity that substantially affects any sort of interstate commerce. Moreover, the Court noted that the matter of possession of guns in local areas is a matter to be left to the states because the states possess the primary authority for defining and enforcing criminal law. The power of both Congress and the federal courts is as set forth in the Constitution. The Constitution delegates to Congress the power ``[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.'' Because powers not delegated to the federalgovernment are reserved to the states, the power to regulate wholly intrastate commerce belongs to the individual states. As the Supreme court recognized in Lopez, the effect of the decision in Wickard was to expand the previously defined authority of Congress under the Commerce Clause, partly in recognition of the changes that had occurred in the way business was carried on in the United States, while still maintaining the original intent of the Farmers that a balance of power be maintained between the state and federal government. In these cases, the Supreme Court has provided the lower federal courts with the standard--substantial effect on interstate commerce--for resolving challenges to Congressional power under the 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). 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 United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court ruled that the test for determining whether an activity is within Congress' power to regulate under the Commerce Clause is whether it ``substantially affects interstate commerce.'' The Court ruled that the enactment of the Gun-Free School Zones Act exceeded Congress' power under the Commerce Clause because the States possess the primary authority for defining and enforcing criminal law, and possession of a gun in a school zone is not an economic activity that substantially affects any sort of interstate commerce. In Prinz v. United States, 521 U.S. 898 (1997), the Supreme Court ruled that the Commerce Clause does not authorize Congress to enact legislation compelling state governments to regulate interstate commerce. Thus, the federal government may not compel the States to execute or implement federal regulatory programs. In Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme Court ruled that the powers delegated to Congress under the Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts. The States' immunity from suit is a fundamental aspect of the sovereignty they enjoyed before the ratification of the Constitution. In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court ruled that a federal district court had subject matter jurisdiction over a case alleging that a Tennessee statute effected an apportionment that deprived Tennessee citizens of equal protection of the laws in violation of the fourteenth Amendment. The Court ruled that the claim was justifiable because it rested on an alleged denial of equal protection, and the right to relief was not diminished by the fact that the alleged discrimination was related to political rights. In Shaw v. Reno, 509 U.S. 630 (1993), the Supreme Court ruled that an allegation that North Carolina's redistricting legislation constituted an effort to segregate the races for purposes of voting was sufficient to state a claim under the Equal Protection Clause of the Fourteenth Amendment. The court remanded the case and ordered the district court to apply the strict scrutiny test under which race-based redistricting could not survive unless narrowly tailored to further a compelling government interest. Under the federal system established by the United States Constitution, the federal government is a government of enumerated powers; the powers not delegated to the United States by the Constitution are reserved to the States and to the people. Because the power of the federal government is limited, Congress may not enact legislation that exceeds its authority under the Constitution, and the jurisdiction of the federal courts is similarly limited by the provisions of Article III. Under the federal system established by the United States Constitution, the states retain the dignity of sovereignty, and may not be subjected to private suits in their own courts without their consent. However, the States are bound by obligations imposed by the Constitution and by federal statutes that comport with the Constitutional design. In ratifying the Fourteenth Amendment, the people imposed some limits on the power of the States, and granted Congress the power to enact appropriate legislation to enforce the Amendment. Question 14. 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 14. The ability of the federal courts to fashion remedies for statutory or constitutional violations, is limited by the case and controversy requirement of Article III. Any remedy should be fashioned as narrowly as possible within the limits of Article III. And beyond the Constitutional limitations, courts are neither designed nor equipped for the administration of prisons, schools or state agencies. ______ Response of Roger L. Hunt to Questions From Senator Smith Question 1. Are there any questions that you feel are off limits for a Senator to ask? Answer 1. No, a Senator may ask any question necessary to fulfill his or her obligation to exercise the advice and consent power of the Senate. Question 2. If a U.S. District Court Judge or a U.S. Court of Appeals judge concludes that a Supreme Court precedent is flatly contrary to the Constitution, are there any circumstances under which the Judge may refuse to apply that precedent to the case before him or her? Answer 2. No, even if I believed the Supreme Court or the Court of Appeals had seriously erred in rendering a decision, I would nevertheless be obligated to follow the established precedent when considering an issue controlled by that precedent. Question 3. 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 3. I do not know what I would have held in the Dred Scott case, without the benefit of the legal briefs filed in connection therewith, the arguments of counsel, and the deliberations of the Justices. Question 4. 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 4. Dred Scott was overruled by the Thirteenth and Fourteenth Amendments to the Constitution and is no longer precedent to be followed by the courts. Question 5. If you were a judge in 1857, would you have been bound by your Oath and would you have mandated to follow the binding precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)? Answer 5. Yes, I would have been bound, in 1857, to follow the case inasmuch as it was legal and binding precedent at that time, until it was overruled. Question 6. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 6. I do not know what I would have held in Plessy v. Ferguson, without the benefit of the legal briefs filed in connection therewith, the arguments of counsel, and the deliberations of the Justices. Question 7. In Plessy v. Ferguson, 163 U.S. (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 7. Plessy v. Ferguson was overruled by Brown v. Board of Education, and its progeny and is no longer binding precedent. Question 8. If you were a Supreme Court Justice in 1954, what would you have held in Brown v. Board of Education, 347 U.S. 583 (1954)? Answer 8. I do not know what I would have held in Brown v. Board of Education, without the benefit of the legal briefs filed in connection therewith, the arguments of counsel, and the deliberations of the Justices. Question 9. 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), 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 of the Constitution. How should the precedent be treated by the Courts? Answer 9. Brown v. Board of Education is still valid precedent as interpreted by subsequent cases and, if confirmed as a District Court Judge, I would be obligated to follow that precedent. Question 10. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 510 U.S. 113 (1973)? Answer 10. I do not know what I would have held in Roe v. Wade, without the benefit of the legal briefs filed in connection therewith, the arguments of counsel, and the deliberations of the Justices. Question 11. In Roe v. Wade, 510 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 11. As modified by Planned Parenthood v. Casey, the majority opinion is still binding precedent and I would be obligated to follow the precedent as a District Court Judge. Question 12. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 12. I am obligated to follow the precedent established by the Supreme Court and I have no personal views that would interfere with my ability to do so. Question 13. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 13. I have no personal view that would preclude me from following Supreme Court precedent with respect to the death penalty. Question 14. W[e] understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 14. I have no personal views that would prevent me from following the precedent of higher courts on the meaning of the Second Amendment. Question 15. 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 15. As Casey reflects the current law of the land on this issue, it is my duty to abide by that precedent until or unless it is changed. I would abide by my obligation to follow precedent on this issue, as with any other issue, which has been established by the Supreme Court. Question 16. 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 16. I understand my obligation to be, with respect to matters involving the unborn, as with all issues, to follow the Constitution, statutes, and the case law of the Supreme Court and Circuit Court. I have no personal beliefs that would prevent me from following established precedent on this issue. Question 17. Do you believe that the death penalty is Constitutional? Answer 17. Yes, and the Supreme Court has found the death penalty to be constitutional. Both in my current position as a U.S. Magistrate Judge and, if I am fortunate enough to be confirmed, as a District Judge, I am committed to follow the precedents established by higher courts. Question 18. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 18. It is difficult to be sure that one could identify all the circumstances which might cause a Supreme Court Justice to consider overruling a precedent, given the importance of stare decisis. The Supreme Court identified several in its decision in Planned Parenthood v. Casey, including: whether overruling a prior decision would be consistent with the rule of law; the court must gage what the respective costs are of reaffirming or overruling a prior case; whether the existing rule has proved intolerable or unworkable; whether there would be a hardship because of reliance on the prior existing law; and, whether the principles of law have developed, or the facts have changed, which leave the old rule merely an abandoned doctrine. Question 19. 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 19. Where the language of a statute is unclear, and there is no guiding precedent, it is appropriate for the court to consider legislative intent to the extent that the court can determine what the intent is of the legislative body. A judge must be careful not to confuse evidence of the intent of the legislative body with that of merely one of its members. ______ Responses of Roger L. Hunt's 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 the precedents of higher courts faithfully and giving them full force and effect, even if I were to personally disagree with a 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. Both in my current position as a U.S. Magistrate Judge and, if I am fortunate enough to be confirmed, as a District Judge, I am committed to following the precedents established by higher courts, regardless of whether I believed the court had seriously erred. 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. The Supreme Court has ruled that race and national-origin based preferences are inherently suspect and could not be used without strict scrutiny and can only survive such scrutiny if narrowly tailored to achieve a compelling state interest. The Court has also ruled that gender-based preferences are subject to the intermediate scrutiny test. There is nothing in my legal judgment that would dissuade me from following that established precedent. Question 4. Are you aware of the Supreme Court's decision in Adarand v. Pena, and the Court's earlier decision in Richmond v. J.A. Croson Co.? If so, please explain to the Committee your understanding of those decisions, and their holdings concerning the use of race to distribute government benefits, or to make government contracting or hiring decisions. Answer 4. I am familiar with Adarand v. Pena and Richmond v. J.A. Croson Co., and my understanding of those decisions is that such preferences are inherently suspect and cannot be used without strict scrutiny of such preferences, and thus cannot be sustained unless justified by a compelling state interest and narrowly tailored to further that interest. 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. I am committed to following the precedent of higher courts on equal protection issues, and any issue that would come before the court. 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 neither legal nor 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 District 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. I believe that delays of 10 years or more between conviction of a capital offender and execution are too long, and the courts should make every effort to resolve all 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 each 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 provisions, one must begin with the presumption of constitutionally each duly enacted statute enjoys and then look to the text of the statute, or the text of the constitutional provision. A judge must then look to any established precedent in interpreting the statute or constitutional provision. If there are no precedents dealing with specific language, the court may look to interpretations of similar language in other statutes for guidance, by way of analogy or analysis. When dealing with interpretation of the meaning of a constitutional provision, the court can also look to the intent of the framers. Furthermore, when dealing with interpretation of a statute, the court can attempt to discern the intent of the legislature, although great care must be taken in attempting to determine what the intent was of the majority who passed the statute as opposed to the expressions of intent of individual legislators. These approaches serve to limit Article III judicial power. 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 the original intent of the Framers of the Constitution; (2) discernment of the ``community 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. Article III of the Constitution provides that the judicial power of the federal courts shall extend to all cases arising under the Constitution and the laws of the United States. Where the Supreme Court has spoken, the precedent established thereby is the law of the land and a District Judge is obligated to follow it. Where a right has not previously been upheld under the Constitution, the interpretation of the plain meaning of the text and the original intent of the Framers of the Constitution is an appropriate and legitimate approach to understanding the Constitution. Attempting to discern a proper interpretation of the Constitution by reference to the current community's interpretations of the text is fraught with the danger of placing in the hands of one person, or a small group of persons, the task of accurately gaging the ever-changing mood of the public. The court is not suited institutionally to accurately determine the current community interpretation. The practical effect would be to affect through the judiciary what should properly be done through amendment to the Constitution. Ratification of amendments through Article V of the Constitution is the legitimate procedure for ensuring that the Constitution meets the changing, or unanticipated, needs of our developing society. The Framers displayed great foresight in providing for amendment after due deliberation by those duly designated to make such a decision, and not on the whim of a single person or a small group of persons. 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. Analyzing a challenge to the constitutionality of a statute begins with the presumption that the statute is constitutional, an analysis of the text of the Constitution and adherence to the precedents already established, with the appropriate application of stare decisis. In a case of first impression, which is rare, the court may also look to analogous precedents. In determining the legal effect of a statute or constitutional provision, one must begin with the presumption of constitutionally each duly enacted statute enjoys and then look to the text of the statute, or the text of the constitutional provision. A judge must then look to any established precedent in interpreting the statute or constitutional provision. If there are no precedents dealing with specific language, the court may look to interpretations ofsimilar language in other statutes for guidance, by way of analogy or analysis. When dealing with interpretation of the meaning of a constitutional provision, the court can also look to the intent of the framers. And, when dealing with interpretation of a statute, the court can attempt to discern the intent of the legislature, although great care must be taken in attempting to determine what the intent was of the majority who passed the statute as opposed to the expressions of intent of individual legislators. 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 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 11. Griswold v. Connecticut found a peripheral right of privacy within the ``pneumbra'' of the First Amendment, even though a ``right of privacy'' is not found in the text of the Constitution. Likewise, Alden v. Maine looked beyond the language of the Eleventh Amendment to find that a State's sovereign immunity existed historically and independently of the language of the Amendment. The first case appears to enhance private rights against the government. The second appears to preserve a State's sovereign protection against certain suits by private citizens. 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. The Wickard case applied a broad interpretation of the federal, government's powers of regulation under the Commerce Clause of the Constitution to affect the price of grain through control of production, holding that it was not the nature of the activity, but the ultimate economic effect which controlled. The Lopez case applied a more narrow interpretation of the Commerce Clause when it found that the possession of a gun in a local school zone did not involve economic activity that substantially affected interstate commerce. The case found that there must be a ``substantial effect'' on interstate commerce before the power to regulate shifts from the state to the federal realm. Conceivably, Lopez gives the courts a comparatively larger role in examining the scope of the Commerce Clause. It would appear to reserve to the States certain actions which do not substantially affect interstate commerce. 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. The concept of duel sovereignty is designed to protect individual rights and liberty. In Lopez the Supreme Court held that the federal government cannot preempt a state government's duty to establish criminal restrictions under the auspices of the Commerce Clause without there being a substantial impact on interstate commerce. In Printz it held the federal government could not place an undue burden on local law enforcement officials to carry out federal laws. In Alden the court looked beyond the language of the Eleventh Amendment to find that a State's sovereign immunity existed historically and independently of the language of the Amendment, and held that Congress could not subject non-consenting States to private suits in federal courts under certain circumstances. In Baker v. Carr the court held that States cannot deny citizens constitutionally mandated equal protection in their voting rights as affected by voting districts, finding that such equal protection presented a justifiable issue authorizing the courts to examine States' redistricting. Shaw clarifies that redistricting cannot be based solely on race, without regard to traditional districting principles, and that any race-related consideration must be subject to strict scrutiny and thus narrowly tailored to further a compelling government interest. The foregoing cases could effectively increase the court's oversight responsibilities, but restrict its ability to act in any way which would invade or diminish the powers of the two sovereignties. Baker appears to give the federal government more power vis a vis the states, while Lopez, Printz, Alden and Shaw appear to limit federal power vis a vis the states. Question 14. Do you believe that a federal district court has the institutional expertise to set rules for and oversee the administration of prison, schools, or state agencies? Answer 14. There has been criticism of some courts' efforts to implement judgments by effectively administering state agencies rather than relying on the responsiveness and institutional expertise of the executive and legislative branches of government. It is a judge's obligation to only decide cases before it by following established precedent. I am committed to following any higher court precedent if called upon to address this issue, and to avoid attempting to reach beyond the issues presented in a specific case, or to undertake a function for which other entities are available and better suited. ______ Responses of Gerard E. Lynch to Questions From Senator Smith Question 1. Are there any questions that you feel are off limits for a Senator to Ask? Answer 1. The Constitution vests the Senate with the power and responsibility to advise and consent with respect to nominations to the federal judiciary. Every Senator has the right and indeed the obligation to ask any question he or she feels is relevant in determining how to exercise the Senate's prerogatives in this matter. Question 2. 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 the precedent to the case before him or her? Answer 2. No. Under our system of law, if a precedent applies to the case before the court, it would be inappropriate for a judge not to apply it. Question 3. 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 3. When later generations have arrived at a virtually unanimous consensus, based on a thorough study of the historical and legal materials underlying the decision, the disastrous historical consequences of the decision, and the moral views of society, that the decision was disastrously wrong, it is tempting to take advantage of the privilege of hindsight, and proclaim that one would surely have decided the case otherwise. We would all like to think that we would not have made such a mistake as we now all agree the court made in Dred Scott. But I would be reluctant to claim that, had I been a member of the Court in 1856, confronting the materials before the Court in light of the understandings of the time, I would have had more wisdom than Chief Justice Taney, who was by all accounts a learned and honorable judge. Question 4. 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 4. The decision is no longer binding precedent, having been specifically overruled by the first sentence of the Fourteenth Amendment. Question 5. 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 5. Yes. It is a judge's obligation to follow the law, including the relevant precedents of the Supreme Court. If a judge cannot in good conscience apply the law of the land to the case at hand, he or she should not sit as a judge in that case. Question 6. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 6. I would have to answer similarly to #3 above. I have always admired Justice Harlan's dissent in that case, and would like to believe that, had I been in the same position, I would have seen the case as he did. Once again, however, I have the benefit of 100 years of history that have vindicated his views. He and his colleagues did not. Question 7. 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 7. Plessy has been overruled by Brown v. Board of Education, 347 U.S. 483 (1954), and the public accommodations cases that followed it, and is no longer good law. Question 8. If you were a Supreme Court Justice in 1954, what would have have held in Brown v. Board of Education, 347 U.S. 483 (1954)? Answer 8. As with other cases that have stood the verdict of history, I would like to believe that I would have reached the decision the Supreme Court reached in Brown. In this instance, since the Court was unanimous, it is easier to believe that, though in fact the case was clearly controversial at the time and some justices appear initially to have disagreed with the eventual decision. Question 9. 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 9.It remains the law of the land, and must be followed by the court. Question 10. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer 10. Unlike the cases discussed above, no clear consensus has emerged about Roe, which remains controversial to this day. Having grown up as a lawyer with Roe the law of the land, it is difficult to put oneself back to a time when the issue was a matter of first impression, and to attempt to consider the issue afresh. I do not know what I would havedecided had I been a Justice in 1973. I do know that Roe, as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992), is the law of the land today. A district court judge is required to follow that precedent. Question 11. 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 11. The Court in Roe faced a difficult decision in light of its precedents about the meaning of the due process clause in its ``substantive'' aspect. Very few opinions on this subject, including those in Roe, are entirely satisfying or persuasive in reconciling those precedents wiht the outcomes reached by the writers. The majority opinion, however, as modified by Caset, is binding precedent, and must be followed by lower court judges regardless of any personal views. Question 12. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 12. A judge's only role with respect to the abortion issue, as with respect to any issue that comes before him or her, is to apply the law, and not to promote any personal views. I hold no personal view that would interfere with my ability to do so. Question 13. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 13. With respect to capital punishment, as with other issues, a judge's role is to apply the law. Whether capital punishment is desirable as a matter of policy is a matter for the legislature, not for the courts, and I have no moral scruple that would prevent me from imposing a death sentence in a case where that was the appropriate judgment under the law. Question 14. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 14. The Second Amendment provides: ``A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.'' If confirmed, and presented with a case implicating the Amendment, I would be required to look to the text of the Amendment, the relevant materials concerning the intentions of the framers, and governing precedent to determine its effect. Question 15. 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 15. Casey holds that the state has an interest in preserving life from the outset, but that interest must be balanced against the mother's liberty protected by the Constitution, which may not be unduly burdened. A judge is obligated to follow that precedent. Question 16. Again, I understand the state of 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 16. A judge's role with respect to this issue is to enforce the law, regardless of any personal beliefs. If confirmed, I would be required to do that. I hold no views that would prevent me from faithfully following applicable precedent. Question 17. Do you believe that the death penalty is Constitutional? Answer 17. Yes The Supreme Court held in Gregg v. Georgia, 428 U.S. 153 (1976), that the death penalty is constitutional when applied in accordance with the principles announced in that case. Question 18. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 18. The principle of stare decisis is fundamental to the rule of law. The Supreme Court should rarely overrule precedents on non-constitutional matters, where any errors can be corrected by legislation if that is thought desirable by Congress. On constitutional matters, a Justice should vote to overrule precedents only when it is completely clear to him or her both that the precedent was wrongly decided, and that further experience has shown it to be unworkable, or that its results are seriously harmful or inconsistent with public morality. Question 19. 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 19. The primary consideration in determining the meaning of a statute is its language, for it is only the language (not committee reports or comments of individual legislators in debate) that is enacted by the Congress and signed by the President. Where the language is susceptible of different interpretations, a careful examination of the history surrounding its adoption may put the language into a context that will help clarify its meaning. Materials from the legislative process may help provide such a context, but such material msut be used with caution and has no independent authority. Question 20. You are an active member, American Civil Liberties Union, and obviously membership in any group is not a disqualifying factor to be confirmed as a federal judge. Do you subscribe to the ACLU's opposition to the death penalty? Answer 20. I believe the ACLU has taken the position that the death penalty is unconstitutional. To the extent the ACLU has taken that position, its views are contrary to the governing case law. As stated above, I have no moral or constitutional objection to the death penalty that would prevent my applying the established law. Question 21. Again, membership in any group is not a factor to be considered to be confirmed to the federal bench, but judicial philosophy is a valid factor. Are you active in the ACLU's Lesbian and Gay Rights Project, which promotes laws that provide special protections for homosexual individuals? Answer 21. I have not played any part in establishing or elaborating the policies of that Project, or been active in it in any way. Question 22. Do you support or oppose the ACLU's opposition to prayer in public schools? Answer 22. I understand the Supreme Court's precedents to provide that the state may not prevent students from praying in schools, but that the state may not endorse or establish religion by officially- sponsoring prayer. The role of a judge is to apply that principle, and I hold no view that would prevent me from doing that. To the extent that the ACLU has taken a position on these issues that is inconsistent with the Supreme Court's precedents, that position does not represent the law. Question 23. Do you subscribe to the ACLU position on abortion? Answer 23. My understanding of the law on abortion is that Roe, as modified by Casey, constitutes the law of the land. That is the law that a judge is bound to apply. To the extent that the ACLU has taken positions inconsistent with that understanding, its position does not represent the law. Question 24. Have you done any pro-bono work, any speeches, or any advocacy for the ACLU? Answer 24. I have never done any speeches, public advocacy, political activities or lobbying for the ACLU. I have participated in briefing five cases in the Supreme Court on behalf of the ACLU, or of clients who were referred to me by the organization. In each case I was asked by someone at the ACLU to take on the case. Each case involved criminal defendants with limited financial resources, in which significant legal issues were before the Court. The cases, my role in them, the issues on which I worked, and the results are set forth below: 1. United States v. Koecher, Docket No. 84-1922. Decided February 25, 1986. Reported at 475 U.S. 133. (Counsel of record for respondent; whether the Court should create a ``co-conspirator'' exception to the marital testimonial privilege; case was dismissed as moot.) 2. United States v. Albertini, Docket No. 83-1624. Decided June 24, 1985. Reported at 472 U.S. 675. (Participated in briefing for respondents; whether, as a matter of statutory interpretation, respondent's good faith belief that his attendance at public open house at military bases was not prohibited by an earlier order barring him from the base, constituted a defense to a charge of re-entering the base in violation of 18 U.S.C. 1382; the Court held that the conduct was covered by the statute.) 3. Austin v. United States, Docket No. 92-6073. Decided June 28, 1993. Reported at 509 U.S. 602. (Counsel of record on brief of ACLU as amicus curiae; whether the Eighth Amendment's excessive fines clause applies to civil forfeiture proceedings; the Court held that it does). 4. United States v. Ursery, Docket No. 95-345. Decided June 24, 1996. Reported at 518 U.S. 267. (Participated in brief on behalf of ACLU as amicus curiae; whether successive criminal and civil in rem forfeiture proceedings violate the double jeopardy clause; the Court held that they do not.) 5. New York v. Burger, Docket No. 86-60. Decided June 19, 1987. Reported at 482 U.S. 691. (Counsel of record on brief of ACLU and NYCLU as amici curiae; whether state statute authorizing searches of scrap dealers' premises without probably cause was consistent with the Fourth Amendment; the Court held that the statute came within the administrative search exception.) Copies of these briefs are being provided along with these answers. As the Committee is aware, in addition to these cases I have represented the United States as a prosecutor or supervising prosecutor in literally hundreds of cases in the district court and the courts of appeals, as well as a number of cases for private clients. Question 25. It was reported that you, in an editorial, suggest in passing that laws criminalizing possession of marijuana are ``politically controversial'' and that people ``don't really expect all these laws to be enforced to the hilt.'' See Gerard E. Lynch, ``The Independent Counsel: The Problem Isn't in the Starrs but in a Misguided Law,'' Was. Post at C3 (Feb. 22, 1998). Do you still subscribe to that idea or has your position changed on the issue? Answer 25. The article to which you refer argued that the Independent Counsel statute, which Congress has since allowed to expire, was a bad idea. The remark in question was part of a short discussion of the discretion of the Executive Branch with respect to investigating and prosecuting crimes. The article does not advocate any particular law enforcement strategy, with respect to marijuana or any other crime. It simple makes a descriptive statement: At least in the jurisdictions with which I am familiar, police devote great efforts to detect and arrest all violent criminals and drug traffickers, and in these cases prosecutors usually bring whatever criminal charges are sustainable. The authorities generally do not devote similar resources to detecting all cases of simple possession of marijuana (among many other crimes, some of which I also chose as examples), and prosecutors quite often allow offenders to be diverted from the criminal justice process altogether, or advocate sentences well below the maximum provided by law. This is what I meant by not enforcing those statutes ``to the hilt.'' The discretion to which I referred is purely a function of the Executive branch of government. Judges, in contrast, have no discretion to enforce or not to enforce laws. They must apply the laws as they exist to the cases that prosecutors choose to bring. That is what I expected judges to do in the five years I served as a federal prosecutor, and that is what I would expect to do as a judge. ______ Responses of Gerard E. Lynch 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, that is my understanding of the role of a 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 where the Court struck down the Religious Freedom Restoration Act. Answer 2. In this case, as in any other, a lower court judge simply has no authority to do anything other than to apply the decision of the Supreme Court, whether or not he or she agreed with the precedent or considered it erroneous. 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, promotions, or layoffs), college admissions, and scholarship awards and the awarding of government contracts? Answer 3. Legal judgment, and our understanding of legal principles, grows from precedent. In this case, for example, the strength of the argument against the constitutionality of government- imposed race-based or national origin-based preferences in employment draws powerful support from the ideal of a color-blind government proclaimed in such cases as Brown v. Board of Education. The governing precedents today clearly hold that racial preferences in hiring or contracting, like other racial classifications, are unconstitutional unless necessary, and narrowly tailored, to accomplish a compelling government interest. Judges are required to follow those precedents. Similarly, gender-based preferences are subject to the intermediate scrutiny described in Craig v. Boren. Question 4. Are you aware of the Supreme Court's decision in Adarand v. Pena, and the Court's earlier decision in Richmond v. J.A. Croson Co.? If so, please explain to the Committee your understanding of those decisions, and their holdings concerning the use of race to distribute government benefits, or to make government contracting or hiring decisions. Answer 4. These cases hold that the government's use of race in such matters is subject to strict scrutiny, and can only be sustained where necessary and narrowly tailored to accomplish a compelling governmental interest. These are precedents that judges are required to follow. 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. 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, I have no legal or moral beliefs that would inhibit me from imposing or upholding a death sentence in any criminal case in which the death penalty is appropriate under the governing statutes and constitutional precedents. 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. Yes. I agree with both statements. Question 8. 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 power. Answer 8. In interpreting any statute or constitutional provision, the language of the provision is the controlling consideration and the first place to look. It is only the language of the provision that was voted by the Congress and signed by the President, or proposed and ratified. Where the language is susceptible to different interpretations, it is appropriate to resort to evidence of its meaning that can be found in the history surrounding its adoption, for this context may help us to understand what the words were intended to mean. But such materials must be treated with great care. They are not themselves legal authority. Where the legislative history of a given provision suggests a highly specific outcome that might or might not be consistent with the most reasonable reading of the words, particular care should be taken. All those who voted for or ratified a particular provision may not have been aware of or agreed with the particular interpretation placed on it by some supporters or opponents in earlier debates. Indeed, the more general or ambiguous language may have been chosen because the proponents of the more specific outcome could not succeed in enacting that outcome in specific terms, or because the enactors expected the language to be interpreted flexibly by future courts or agencies. Finally, precedent must be consulted and followed. In our system of law, courts are not permitted or required to revisit every issue de novo. Once a provision has beenauthoritatively interpreted by the Supreme court, lower courts must always, and the Supreme Court itself should ordinarily, follow that interpretation. 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 the original intent of the Framers of the Constitution; (2) discernment of the ``community's interpretation'' of the 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. As I understand the Article III judicial power, courts have no authority to do anything other than interpret the Constitution as it is written. As stated in my previous answer, this is primarily a matter of reading the language of the Constitution, including any amendments duly ratified under Article V. Unenacted ``legislative history'' must be used with great care in trying to determine the intended meaning of a provision. The framers and ratifiers of a particular provision voted on the words of the provision, and not on a particular viewpoint expressed by one of its drafters. If Justice Brennan meant that a Court may simply consult current public opinion in order to read new ideas into the Constitution, he was clearly wrong, for neither courts nor public opinion has the power to do this. 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 a case not of first impression, one would have to follow the governing precedent. Even in a case of first impression, precedent would ordinarily be the first recourse, because it is very rare that cases present entirely novel issues. Even if a case is not directly controlled by precedent, precedent sets the boundaries of decision. Analogous cases and non-binding authority from other circuits might provide insight toward the decision of the case. In the rare case in which a district court judge had to reason absolutely from scratch, the starting point would be to interpret the language of the statute, applying a presumption of constitutionality. Only if the language of the Constitution, properly interpreted, clearly required invalidation of the statute, should a lower court judge find that presumption overcome. Question 11. In your view, what are the sources 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 11. In these cases, the Court seems to find its result not in the words of the constitutional provisions at issue, but in broader principles that the court finds underlying the provisions. In Griswold, the Court holds that there is a right privacy that can be found not in the actual language of, for example, the Fourth Amendment, but in the ``penumbras'' or background principles underlying a number of constitutional provisions. In Alden, the Court appears to find a principle of state sovereign immunity, not in the actual language of the Eleventh Amendment, but in structural principles underlying that Amendment. District judges are obligated to follow these precedents where they are applicable. 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. These cases provide an example of the tensions between applying a strong presumption of the constitutionality of acts of Congress, promoting early understandings of the meanings of the Constitution, and defending states' rights. In Wickard, the Court applied a presumption of constitutionality, and upheld an expansive interpretation of Congress's power under the commerce clause. The constitutional text does not give a very clear meaning to the regulation of interstate commerce, and to have struck down the legislation would have risked asserting the power of unelected judges to invalidate Congress's considered judgment of its power. In Lopez, the Court applied a narrower view of the commerce power, emphasizing the balance of authority between the federal government and the reserved power of the states. District judges are bound to follow these precedents where they are applicable. 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. The division of power between the national government and the state governments plays several roles in our federal system. The states have an independent sovereign constitutional existence in their own right, that must be respected for its own sake. The framers of the original Constitution also believed that the separate existence of the states would protect individual liberty, since they feared that a national government would be too remote from the people, and therefore too oppressive. The framers of the post-Civil War amendments apparently believed that the federal government could also have a rolein protecting the rights of citizens when state governments interfered with their rights. This complex constitutional structure creates a complex balance among federal power, state power and individual rights (Alden). The Supreme Court is sometimes put in the difficult position of having to reconcile the original Constitution's vision of a limited federal government with the power given to the federal government by the Fourteenth Amendment. The specific cases cited exemplify this tension in various ways. In some, the Court seems to have interpreted the Constitution to limit the power of the federal government, thus protecting state sovereignty and the liberty of people against federal criminal authority (Lopez, Printz), at the expense of invalidating acts of Congress. In others, the Court interpreted the constitution to allow federal courts to protect individual rights to equality at the expense of the authority of states to control their own government rights to equality at the expense of the authority of states to control their own government structures (Baker, Shaw). These precedents must all be followed by lower courts. Question 14. 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 14. No. Federal judges are not selected or trained for their expertise in these areas, do not have the institutional resources to set policies for these institutions, and do not have constitutional authority to administer such institutions. Policy-making for these institutions belongs to various executive, legislative and administrative agencies. The judicial role is limited to enforcing relevant laws. Question 15. You have written that you believe Justice Brennan's attempts to articulate constitutional principles ``in the way that he believed made most sense today seems far more honest and honorable that the pretense that the meaning of those principles can be found in eighteenth- or nineteenth-century dictionaries.'' Can you explain what you mean by this statement? Do you believe that judicial attempts to discern the original intent of the Framers of the Constitution is dishonest and dishonorable ``pretense''? Answer 15. The statement quoted comes from a eulogy for Justice Brennan on the occasion of his death. I do not believe that good faith attempts to discern the original intent of the framers are dishonest or dishonorable. Judges and historians daily make honorable and honest attempts to understand the thoughts of the framers. Too often, however, the history that lawyers present to courts is deliberately or inadvertently biased by the position that lawyers as advocates would like to reach, and such resort to partial and limited sources can be used to support results that accord with policy preferences. While Justice Brennan took positions that can be criticized as activist, it is generally agreed that he was forthright in stating his approach. Question 16. You have written that the Supreme Court ``is better placed [than the legislature] to decide whether a proposed course of action that meets short-term political objectives is consistent with the fundamental moral values to which our society considers itself pledged.'' Can you explain what you mean by this statement? Answer 16. The quoted statement comes from a book review in which I sharply criticize a book that makes the claim that courts have authority to enforce moral principles of its own choosing, a position I do not share. In the quoted passage, I was attempting to explain why the Supreme Court is given power to enforce the text of a written Constitution. Although this power is universally accepted in the United States today, and has become a model for other democratic countries as well, it was hardly obvious at the time of Marbury v. Madison, I Cranch 137 (1803), that courts should have the power to declare that acts of the legislature that it found inconsistent with the written Constitution are void. The framers adopted a written Constitution, and allowed the courts to enforce it, as part of a system of checks and balances. They were concerned that without a judicially-enforceable Constitution, legislatures might on occasion, in the understandable and laudable desire to accomplish good objectives, focus on the near-term benefits of a course of action, at the expense of the commands of the Constitution. The Supreme Court is not given this power because it has greater wisdom or skill in interpretation than the Congress. Legislators are at least wise and just and patriotic as judges, they take the same oath to uphold the Constitution, and they have the further advantage of democratic legitimacy. Rather, this task is assigned to the Supreme Court because of its institutional advantages. Because its members do not face re-election, they are freer from the pressure for immediate results. Because problems usually do not reach the Supreme Court until after the passage of time, the Court can often consider an issue with the luxury of some hindsight, after an apparent crisis has passed. If the Court had no such advantages, there would be little advantage to judicial review. Question 17. If following established precedent in a particular case would cause a judge to reach an unjust result, and deviation from established precedent would achieve a just result, would the judge ever be correct in refusing to follow established precedent? Answer 17. No. The judge's role is to apply the law, not to make it. ______ Responses of Donnie R. Marshall to Questions From Senator Hatch youth drug use Question 1. Rise in youth drug use in rural areas: The Administration has been crowing that teen drug use since 1997 has decreased by 13 percent and appears to be ``leveling off'' for the first time since it began to increase in 1992. However, use among this age group remains markedly higher that it was in 1992. For me, the problem is, and I hope that you agree, that even if teen use is leveing off, it is leveling off at unacceptably high rates. For instance, use amongst eighth graders since 1992 has increased by 129 percent for marijuana, by 80 percent for cocaine, and by 100 percent for both crack and heroin. Additionally, the perception that youth drug use is confined to our nations urban areas is proving to be mistaken. According to a recent report funded by the DEA, illegal drug use among teens is notably higher in rural America than in urban and surburban areas. The report found that eighth graders living in rural areas, as compared to eighth graders living in urban areas, are 104 percent likelier to smoke marijuana, and 83 percent likelier to use crack cocaine. This is particularly troubling to me and my constituents from the mostly rural state of Utah. What do you think accounts for this drastic increase and do you have a strategy for bringing these numbers down? Specifically, what can I tell my constituents back home that the DEA is doing to protect children living in rural areas from becoming victims of illegal drug trafficking and use? Are you taking a different approach from that used in urban and suburban areas? If so, what is different? Answer 1. One of the most worrisome trends to appear on the American drug scene is the spread of drug trafficking and its related violence into small rural towns and communities. Accounting for this, I believe, is a combination of criminal, societal, and economic factors. Among them are: an intentional effort by drug cartels and their cells to exploit new rural drug markets; changing demographics and migration patterns in the Midwest; increased reliance on the highway system to transport drugs into and through the Midwest; a lack of parental involvement in the lives of their children; a lack of research on rural drug abuse, as well as law enforcement resources in rural America; and the glorification of drugs and reckless living in movies, television, and music that target youth. During the last five years, drugs, gangs and international drug traffickers have spread into small American towns and suburban rural communities. As a result, these areas are now experiencing the same levels of drug abuse and drug related violence, crime and fear that major urban areas have witnessed over the years. The drug problems of smaller cities and rural areas have also been exacerbated by the emergence of methamphetamine trafficking and the violence associated with meth production and use. To focus national attention to this threat to mid size American communities, DEA hosted a conference in February of 1999 which was attended by over 200 senior officials from law enforcement, prevention, and treatment agencies at the federal, state, and local levels. This conference resulted in specific recommendations to address the problems of increased drug trafficking and violence in rural and smaller cities. In conjunction with this and as a follow-up to the Methamphetamine Interagency Task Force Report, DEA has worked with other Department of Justice components, as well as the Departments of Education and Health and Human Services to establish demonstration projects around the country. The purpose of these projects is to saturate a small area with aggressive enforcement action, as well as prevention, treatment, and targeted Federal funding in respond to increased drug trafficking and abuse. One of our most successful domestic initiatives in assisting small communities in this country is DEA's Mobile Enforcement Team. The Mobile Enforcement Team (MET) was specifically designed to support state and local police agencies in identifying and dismantling violent drug trafficking groups operating in our communities. As of March 31, 2000 these MET deployments throughout U.S. communities have resulted in 9,894 arrests. The DEA has twenty-five MET Teams totaling approximately 260 agents who are highly mobile and specially equipped and able to operate anywhere in the United States. Once such MET team is currently deployed to Midvale, Utah. The MET is working with local authorities to collect intelligence and launch an investigation of a drug gang based out of one of the town's public housing projects. In addition to the MET teams, the DEA established Regional Enforcement Teams (RET) to assist DEA Field Divisions and respond to selected investigations which cannot be addressed by law enforcement agencies in those areas. Currently two RET teams located in Charlotte, North Carolina and Des Moines, Iowa are fully operational. A third RET team located in Las Vegas, Nevada will be operational as of September 2000. DEA's Demand Reduction Section, in conjunction with the National Crime Prevention Council, has conducted several three-day working group sessions, as follow-up to DEA's successful MET Program. This MET ``Phase II'' training is offered to selected community leaders where MET investigations have recently concluded. The training is intended to provide community leaders with instruction in community mobilization and drug demand reduction issues. DEA is committed to recognizing and responding swiftly to the emerging drug trafficking threat in our smaller and mid-sized cities. In our budget submission requestfor 2000, we requested an increase for Domestic Enforcement Initiatives for mid-sized cities. However, this request was not included in the Administration's budget proposal. I hope to renew this request in our submission of our 2002 budget. As you are well aware, for the past five years methamphetamine use and abuse has spread throughout Utah. Clandestine laboratory seizures have increased from 37 in 1995 to over 200 last year. In responding to this threat, DEA staffing in Utah has increased over 50 percent, from 12 Special Agents in 1996 to 19 Special Agents, 2 Intelligence Analysts, and 4 Diversion Investigators, which has enabled DEA to participate more fully in state-wide task force operations. The Metro Task Force now involves 24 Task Force Officers, along with 17 DEA Agents in the Salt Lake City Office. In addition, DEA recently opened a Post of Duty in St. George, Utah and has provided specialized training to over 100 state and local officers to help them manage clandestine laboratories and investigate methamphetamine traffickers. Finally, with your support, DEA intends to elevate its Salt Lake City Resident Office to a full District Office in the near future. Question 2. Club Drugs: Recent studies show that teen use of highly potent and toxic so-called ``club drugs'' or ``designer drugs,'' such as Ecstasy and GHB, is soaring out of control. Many teens do not perceive these drugs as harmful or dangerous and are using them at all- night dance parties called raves, which occur every weekend across the country. Ecstasy is marketed to teens as a ``feel good'' drug and is widely known at raves as the ``hug drug.'' In the last few years, seizures of Ecstasy alone have risen drastically and its allure to teens doesn't appear to be waning. Indeed, between 1998 and 1999, use of Ecstasy among twelfth graders increased by 56 percent and use among tenth graders increased by 33 percent. While GHB has received recently more negative attention due to several teen deaths attributed to its ingestion, its use also remains ubiquitous at these parties. Is there any truth to the assertion that law enforcement is not targeting these drugs because of the fact that their distribution and use are not generally linked to violence and crime? What action is the DEA taking to target these new drugs that apparently are being marketed to teens? Is the DEA working with other law enforcement agencies, specifically the Customs Service, to address the drastic rise in the importation of Ecstasy''? Answer 2. The perception that the distribution and use of Ecstasy does not appear to be associated with violence and crime, in no way determines law enforcement's pursuit of targeting the manufacture, importation and distribution of this drug. Ecstasy, also known as MDMA, is a clandestinely manufactured Schedule I controlled substance, possessing stimulant and mild hallucinogenic properties whose production and trafficking has become a major problem for law enforcement across the nation and around the world. Ecstasy's attraction is due largely to the false perception as being safe and non-addictive. However, research conducted by the National Institute of Mental Health indicate that recreational MDMA users risk permanent brain damage that may manifest itself in depression, anxiety, memory loss, learning difficulties, and other neuropsychiatric disorders. The number of nationwide hospital emergency room mentions, particularly those involving MDMA have more than quadrupled from 1994 to 1999. While MDMA is mostly produced in the Netherlands, Germany and Belgium, there has been a recent increase in the rise of clandestine MDMA laboratories in the United States. In response to this threat, the Drug Enforcement Administration has established several Special Enforcement Programs designed to provide specific resources and assets for MDMA investigations around the country as well as in our foreign offices around the world. DEA has not only partnered with our State and Local counterparts but we are coordinating our international investigations with the US Customs Service in order to target and dismantle the command and control aspects of these large scale trafficking organizations. In addition, DEA is coordinating international MDMA investigations with our foreign counterparts in these source countries. These multi-faceted cooperative law enforcement efforts have resulted in the identification of several large-scale MDMA trafficking organizations currently under investigation in the United States and abroad. In Fiscal Year 1999, DEA New York seized over two million tablets of MDMA as a result of such cooperative investigations. Additionally, DEA has immediate plans to work with law enforcement and community leaders to focus greater attention on this problem and find more effective ways to combat this growing problem. Finally, while our principal response to this threat requires a law enforcement approach, DEA is committed to working with communities and civic organizations across our nation in order to establish programs, which will assist in reducing the demand for these types of drugs among our young people today. ii. methamphetamine Question 1. Methamphetamine strategy: As I am sure you are acutely aware, methamphetamine is fast becoming one of our nation's preeminent drug problems. Laboratory seizures continue to rise dramatically, increasing amounts of the drug are pouring into the United States from Mexico, and what was once a problem largely confined to the southwestern part of the country is now rolling across the heartland on its way to the East Coast. In my state alone, DEA lab seizures have risen from 29 in 1995 to over 200 last year-and that number does not even account for seizures by State and local officers. This is occurring despite the fact that I and several others on this Committee have worked hard over the past few years to pass legislation that provides additional tools specifically directed at the methamphetamine problem. What is your strategy for confronting this growing problem? Does your strategy include a plan designed to stop the spread of methamphetamine to States that have, until now, been largely unaffected? If so, can you describe this plan? Answer 1. Methamphetamine use and trafficking, traditionally concentrated in the western United States, has spread throughout the Midwest to the southeastern United States. Mexico-based poly drug trafficking organizations dominate wholesale methamphetamine trafficking using large-scale laboratories in Mexico and the southwestern United States to produce the drug. DEA estimates 70% of the U.S. methamphetamine production and distribution is controlled by Mexico based crime groups out of Mexico and California. Statistics indicate two distinct components to the overall methamphetamine problem. One involves the emergence of the Mexico based traffickers while the other involves the identification and clean up of the growing number of smaller producing ``mom and pop'' laboratories. As a result of the emergence of the Mexico based methamphetamine trafficking organizations as the primary sources of methamphetamine distributed within the United States, the DEA Special Operations Division (SOD) formulated a strategy in the summer of 1999, targeting these organizations production, transportation and distribution components nationally. These organizations have expanded their bases of operations to numerous cities from California to the heart of the Midwest and beyond. These Mexican national traffickers have placed organizational members within existing, established, law-abiding Hispanic communities in these areas in an attempt to thwart local law enforcement efforts to identify and immobilize these methamphetamine organizations. Traditionally, local law enforcement efforts in these areas, while effective in the short run, have not attacked these investigations on a national scale as has been done with traditional cocaine investigations. As a result, an overall enforcement strategy to include production, transportation and distribution of methamphetamine/ precursor chemicals, as well as rogue suppliers of diverted precursor chemicals, was developed and is currently being implemented. This strategy includes targeting command and control communication apparatus, identifying methods of narcotics proceeds transfers and asset forfeitures. Traditional law enforcement efforts and techniques produced periodic successes, but never identified nor eliminated the organizational structure. Numerous Title III court authorized wire interceptions targeting these organizations has resulted in the dismantling of the organizations in their entirety and the identification of transportation and production components. We are cautiously optimistic that this strategy, combined with precursor chemical controls and aggressive state and local police efforts combating methamphetamine have produced some very positive results. The average purity of methamphetamine exhibits seized by DEA has dropped from 71.9% in CY-1994 to 31.1% in CY-1999. The average purity of amphetamine exhibits seized by DEA has dropped from 56.9% in CY-1997 to only 20.8% in CY-1999. Arrests in DEA methamphetamine investigations increased in Fiscal Year 1999, to 8,680, a 10% percent increase from the 7,888 arrests in Fiscal Year 1998, but a 41% increase over the 6,145 arrests in FY-1997, and a significant 113% increase over the 4,069 arrests in FY-1996. Another method which the DEA utilizes to disrupt and dismantle methamphetamine manufacturing and distribution organizations is through its highly successful Mobile Enforcement Team (MET) Program. Since the program's inception in early 1995, approximately 27 distinct methamphetamine trafficking organizations have been targeted and disrupted. Of the ten deployments which took place within the San Francisco Division, all targeted methamphetamine distribution organizations. Of the deployments which occurred in the Seattle, San Diego, and Phoenix Divisions, the preponderance of MET deployments targeted methamphetamine trafficking organizations. The Dallas and Denver Divisions each targeted two specific methamphetamine distribution organizations during their MET deployments. However, it is important to note the majority of MET deployments in the United States target polydrug trafficking organizations which traffic in methamphetamine to varying degrees. DEA has also dramatically increased its efforts in providing the specialized training and equipment, mandated by federal regulations, for state and local law enforcement officers who participate in raiding methamphetamine laboratories. We conservatively estimate at least 80% of the state and local law enforcement officers in the nation who are ``safety certified'' to process methamphetamine laboratories received their initial one week training certification from the DEA Clandestine Laboratory Training Unit. In FY-1995, DEA trained and ``certified'' 118 law enforcement officers to raid clandestine drug labs. In FY-1999, 1,366 students graduated from the DEA Clandestine Laboratory Safety School. Each of these officers was issued over $2,000 in specialized clandestine laboratory safety equipment. Plans have been formulated to conduct training programs fore 1,968 law enforcement officers in FY- 2000. These figures do not include the thousands of law enforcement officers and civilian personnel who have received DEA training in shorter classes and seminars on clandestine lab awareness, investigations, and/or annual recertification training in conferences across the country. The significantly larger number of officers/agents who have been ``safety certified'' to raid clandestine laboratories, as well as the recent significant national drop in methamphetamine purity (71.9% in 1994 compared to 31.1% in 1999), have been a factor in the dramatic rise in clandestine laboratory seizures. Obviously, the more officers/ agents who are trained to investigate clandestine labs will have a significant impact on the number of labs seized. In response to the portion of your question regarding DEA planning to ``stop the spread of methamphetamine to States that have, until now, been largely unaffected'', I would point out the previously cited statistics on the dramatic increases in DEA training efforts for state/ local police also included a significant portion of training for states which have not yet experienced, or are only now beginning to experience, an increase in methamphetamine lab seizures. In the enforcement/operations arena, DEA is on the forefront of efforts to combat methamphetamine production, but the role DEA plays in some regions of the country may be different from others, depending on the nature of the methamphetamine problem in that region. DEA Clandestine Laboratory Enforcement Teams in the Midwest U.S. have traditionally been very active in the seizure of the small ``mom and pop'' operations because of the lower numbers of local/state police officers who are trained to conduct methamphetamine laboratory raids. The number of clandestine laboratory seizures in which DEA participated has increased from 362 in CY-1995 (327 methamphetamine) to 2,021 in CY- 1999 (1,986 methamphetamine). This is a 458 percent increase in only five years. The combined DEA and state/local police clandestine lab seizures for CY-1999, reported to the National Clandestine Laboratory Database at EPIC, was 7,010 laboratories (6,793 methamphetamine), and reports for CY-1999 lab seizures are still coming in from state and local police agencies across the country. DEA efforts in California are primarily focused on the investigations of the larger lab production operations, which produce the vast majority of the methamphetamine in the U.S., and the command and control structure of the significant Mexican drug trafficking organizations who operate them. In addition, DEA's Special Operations Division and Office of Diversion Control area actively involved with state and local police in chemical interdiction operations. In many Midwest and Eastern U.S. states, clandestine laboratory operations are a relatively new phenomenon, and DEA lab teams are therefore more actively involved in the seizure of small production lab operations in these regions. This is because of the lower numbers of state/local police officers who are trained and do not have the adequate equipment to respond to the growing number of small production lab seizures. DEA has also provided much needed assistance to state/local policy agencies in the cleanup of clandestine laboratories through the COPS program. In 1999, DEA conducted more than 3,800 clandestine laboratory cleanup operations--the majority of which were state or local policy agency requests for assistance. The average cleanup cost of approximately $4,000, varies by region, by DEA has facilitated the cleanup of clandestine laboratories which cost in excess of $100,000. It is noted the seizure of a large lab or multiple small lab operations could easily bankrupt a small policy department or rural sheriff's office. DEA has formulated plans to establish a ``Dangerous Drug Desk`` to further enhance and coordinate the current programs and limited resources in the DEA Methamphetamine Program. The ``Dangerous Drug Desk'' at DEA Headquarters will upgrade the DEA Methamphetamine Program for a collateral duty of the Domestic Operations West Section to a primary component of the new Desk. In view of the unique nature and challenge of synthetic drug production operations (methamphetamine, MDMA, GHM, etc.), the investigation of these synthetic production and trafficking operations, as well as the specialized training, equipment, chemical interdiction, and investigative techniques required to combat them, will become the coordination responsibility of this new Desk. DEA was allocated $1,975,000 from a Congressional Appropriation for FY-2000 for the purchase of specialized lab raid safety equipment. In view of the dramatic increase in clandestine laboratory seizures in recent years, coupled with related fires, explosions, and toxic chemical injuries associated with these laboratories, a Clandestine Laboratory Safety Equipment funding site has been established within the DEA Methamphetamine Program. This funding is essential for officer safety and security. This funding is being utilized to purchase and distribute a variety of specialized safety equipment, ranging from air monitors to chemical protection suits, to every domestic DEA field division to ensure agents and local police officers in DEA task force operations engaging in the high risk activity of executing raids on clandestine drug laboratories, have the essential tools to process these laboratories in a safe and prudent manner. The funding allocation for clandestine laboratory safety equipment is now a DEA recurring budget item. These funds may be used for safety equipment and/or the purchase and repair of laboratory safety vehicles/trucks. DEA has also utilized other funding to purchase and distribute nine new specialized Clandestine Laboratory Safety Vehicles (trucks) to the field divisions. Plans have been formulated for the continued distribution of this funding to the DEA Clandestine Laboratory Coordinators for the purchase of safety equipment and/or future raid truck repairs. The percentage distributed to each field division is based primarily upon the number of clandestine laboratories which are seized in each respective region. Some of this funding will be forwarded to the DEA laboratories to provide safety equipment to the DEA chemists who also participate in the hazard assessment and processing stages of clandestine laboratory seizures. In addition to plans to streamline DEA Headquarters and field enforcement efforts to combat methamphetamine, DEA has formulated plans to enhance DEA training programs for state and local police involved in clandestine laboratory investigations. In Calendar Year (CY) 2000, the DEA Office of Training has planned programs for the implementation of three additional courses designed for state and local officers. These additional courses will assist state and local law enforcement agencies by providing advanced clandestine laboratory training, specialized tactical raid training, and a new clandestine laboratory awareness training course, in addition to the one week certification schools currently provided to officers nationwide. This program is designed to provide training to a pool of state and local law enforcement instructors in clandestine laboratory awareness and safety. Once trained, these police instructors will be provided with training material that can be utilized by them to conduct recertification training and awareness seminars throughout their respective states. The DEA Office of Training has met with the executive board of the International Association of Directors of Law Enforcement Standards and Training (IADLEST) who have set up a seven member board consisting of regional directors to meet with the DEA Office of Training and assist in the implementation of the above mentioned training programs. Question 2. Cleanup Funding: Another pressing issue on this topic concerns the cleanup of seized methamphetamine laboratories. With the record number of lab seizures, States and the DEA itself are running out of resources to handle lab cleanup. In light of this I was amazed to learn that the Clinton Administration rejected your request in this year's budget for $21 million dollars for lab cleanup. Do you know why your request was rejected? AND, What are you doing to address this problem? Answer 2. I would like to assure you, Senator Hatch, that I too share your concern over the current lack of resources for methamphetamine related clandestine laboratory cleanup. The growing national problem of methamphetamine trafficking, use and abuse continues to place a tremendous burden on federal, state and local law enforcement personnel across the country. In Fiscal Years 1998 and 1999, DEA received funding for state and local clandestine laboratory cleanup through the Department of Justice's (DOJ) Community Oriented Police Services (COPS) program. In Fiscal Year 2000, no additional funding was provided to DEA, through the COPS program, for this purpose. Instead, funding was provided through COPS to 14 states to cover the cost of methamphetamine-related cleanup, training and enforcement programs. DEA began Fiscal Year 2000 with a total of $7.9 million in its budget for state and local clandestine laboratory cleanup. Through the first half of the year, we continued to provide our cleanup services to state and local law enforcement organizations across the country on a first come, first serve basis. These services were provided through the use of residual COPS program funding, which we carried over from previous years' appropriations, and a small reserve of directly appropriated resources. However, by mid-March, due to the spiraling increase in methamphetamine laboratory seizures across the country, we completely exhausted our existing cleanup resources. We now find ourselves in a position where we are unable to continue to provide cleanup services to state and local law enforcement upon request. In addition, as you have noted, DEA did request an additional 10 positions and $21.8 million in funding for methamphetamine related cleanup programs in the Department of Justice's Fiscal Year 2001 budget request to the Office of Management and Budget (OMB). Unfortunately this request was subsequently denied by OMB due to the limited availability of enhancement resources. This being the case, no additional DEA cleanup resources are included in the President's Fiscal Year 2001 budget request which currently sits before the Congress. In an effort to address the current lack of cleanup funding, DEA is continuing to work closely with DOJ, OMB and the Congress to secure additional Fiscal Year 2000 resources for state and local clandestine laboratory cleanup. I understand that The Department of Justice (DOJ) has received approval from OMB to reprogram 10 million of DOJ funds to DEA and that this request has been sent to the Congress. I am hopeful that through our continued efforts, we can find a solution that will work to alleviate some of the strain that the nation's methamphetamine crisis has placed on law enforcement personnel across the country. I would also like to assure you that we will continue to work with the President and Congress toward a long-term solution to methamphetamine problem, and more specifically the clandestine laboratory cleanup problem, in Fiscal Year 2001 and beyond. iii. administrative issues Question 1. Administrator Independence: Mr. Marshall, you have devoted your entire career to working as a law enforcement agent in the area of narcotics enforcement. Indeed, you began your law enforcement career in 1969 as a special agent for the DEA's predecessor agency, the Bureau of Narcotics and Dangerous Drugs. I commend you for your contribution and dedication to combating the illegal drug plague that has consumed America and continues to target our children. It is my understanding that if you are confirmed, which I expect you will be, you will be the first career DEA agent to rise through the ranks to Administrator. Understandably, you have received full support from current and former DEA agents, as well as from various federal and State law enforcement agencies. I think everyone will agree that your background has prepared you to take on the enormously important duties and responsibilities that are inherent in the job of the Administrator of the DEA. I have spoken with you previously about concerns that have been raised regarding your ability appropriately to place public policy interests and affairs over the individual or collective interests of career DEA agents. Can you assure me that as Administrator of the lead federal law enforcement agency in charge of domestic drug enforcement, you will be faithful in carrying out your duties to the public, even when doing so may conflict with the interests or desires of career DEA agents? Answer 1. My first and foremost responsibility is to the American people. For more than 31 years I have lived my life in the service of the American people as a narcotics law enforcement officer. In this capacity I have taken an oath to protect and serve the citizens of this great country. With this oath attaches a tremendous responsibility and dedication to duty. I fully recognize the necessity of maintaining the public trust as a prerequisite to the effective performance of this responsibility and duty. If confirmed, I will be the first career DEA Special Agent to rise through the ranks to Administrator. Over the course of my career and in my capacity as both Deputy Administrator and Acting Administrator, I have made, at times, decisions that may have conflicted with the interests or desires of career agents because it was in the best interest of the American people. I realize that first and foremost, my priority is to serve the American public to the best of my ability while providing the leadership necessary to ensure that DEA provides the best possible drug law enforcement to the people we serve. Each and every decision has been and must be done in an objective, impartial and fair manner, regardless of the issue or potential ramifications. I can assure you that we are a value-based institution where loyalty, duty, respect, honesty and integrity are the cornerstone of all that we do today. Without reservation, I can assure you that I will be faithful in carrying out the duties as the Administrator of the DEA, irrespective of the specific interests of others. iv. marijuana Question 1. Trafficking in the District of Columbia: Recent news reports have caused me concern about the enforcement of marijuana trafficking laws in the District of Columbia. One article late last year in the Washington Post described the case of a woman who, despite being apprehended with fourteen pounds of marijuana, was charged only with a misdemeanor and, upon conviction, received a sentence that did not include any time in prison. Although the U.S. Attorney could have brought the case under tougher Federal laws, she chose to prosecute the woman under lenient District of Columbia laws. The result of this approach is not surprising: according to the Assistant U.S. Attorney who prosecuted the case mentioned in the article, ``people come down to D.C. because they know marijuana is a misdemeanor.'' And the U.S. Attorney herself acknowledged that ``[m]arijuana trafficking [in the District] is a highly lucrative, low-risk enterprise.'' I have attempted to look into this issue, but inexplicably, the Department of Justice has refused to provide a copy of the marijuana prosecution guidelines used by the U.S. Attorney here in the District. One is left wondering why the U.S. Attorney does not exercise her discretion to prosecute marijuana cases under Federal law. After all, under Federal law a person possessing fourteen pounds of marijuana would face a felony conviction and a prison sentence of 15-21 months under Sentencing Guidelines. Do you know anything about the marijuana problem here in the District? Would you agree that the certainty of felony convictions and prison sentences under Federal law undoubtedly would act as a greater deterrent to those who would sell marijuana in our nation's capital? Answer 1. Marijuana is the most common drug of abuse in Washington, D.C. and is readily available in retail and wholesale amounts. In Washington, D.C., street level marijuana is often distributed and consumed in ``blunts''--hollowed-out cigar wrappings containing marijuana, or marijuana and tobacco. Marijuana trafficking organizations operating in the Washington, D.C. area are comprised of Jamaican trafficking organizations and local gangs. These organizations utilize a variety of means to import bulk amounts of marijuana into the Washington Metropolitan area. Smaller, multi-pound quantities of marijuana are routinely smuggled into the area by couriers or are mailed in express delivery parcels. For the past three years the Washington Division Office of the Drug Enforcement Administration, which covers Washington, D.C., Virginia, Maryland and West Virginia, has initiated over 102 marijuana cases which resulted in the arrests of over 280 suspects. As a career Drug Enforcement Agent, I have seen the ravages of drug trafficking throughout our cities and towns in this nation and have witnessed the results of weak drug laws, which have led to increased use, and abuse of illegal drugs. I strongly believethat aggressive pro- active drug law enforcement coupled with severe penalties for drug trafficking is in fact a deterrent to drug related crime. Question 2. Medical Marijuana: Currently, 18 states have passed laws or propositions allowing for the use of marijuana purportedly for medical purposes. As we all know, the campaigns for these laws and propositions have been fueled by pro-drug organizations that exploit the unfortunate medical conditions of some to further their ultimate goal of legalizing marijuana and other illicit drugs. In 1996, California voters approved Proposition 215, the medical marijuana initiative, which grants people, with the recommendation of their physician, the right to obtain and use marijuana for medical purposes. After this initiative was approved in California, former Attorney General Dan Lungren, along with the federal government, continued to prosecute under federal law cases where people were growing, selling, or using marijuana, regardless of the purpose for engaging in such activities. However, the current Attorney General, Bill Lockyer, vowed to implement guidelines that would make marijuana available pursuant to Proposition 215. Some California cities have resorted to passing ordinances allowing for the medical use of marijuana due to the uncertainty and vagueness of the State initiative. As a result of the initiative and ordinances, so-called cannabis clubs have popped up all over California. In fact, a ``bed, bud and breakfast'' is due to open soon in California, which caters to, and I quote, ``medical marijuana users and all people who are seeking like expanding opportunities.'' To smoke marijuana at this inn with impunity, one will need only have a note from a physician stating that he has a condition for which marijuana is considered helpful. This is obviously contrary to federal drug laws which regulate the distribution and possession of Controlled Substances, including marijuana. What is the DEA doing to address the obvious conflict between federal marijuana laws and State laws, which allow for the distribution and use of marijuana? What action, if any, is the DEA taking against physicians who prescribe or distribute marijuana to patients? Will the DEA take action against physicians who recommend, as opposed to prescribe marijuana for patients? If so, how will the DEA keep track of these physicians? Answer 2. As the question indicates, State laws that purport to authorize the use of marijuana for ``medical'' purposes directly conflict with federal law. Under the Controlled Substances Act (CSA), marijuana is classified as a schedule I controlled substance. By definition, schedule I controlled substances have ``no currently accepted medical use in treatment in the United States'' and a ``lack of accepted safety for use . . . under medical supervision.'' The CSA therefore prohibits the use of marijuana outside of research that has been approved by the Food and Drug Administration and registered with DEA. It is impossible for any citizen to use marijuana contemplated by State laws such as California Proposition 215 without violating the CSA. Furthermore, such State laws promote unlawful drug use, which frustrates the purpose of the CSA and interferes with the United States meeting its obligations under international drug control treaties. To address this situation, DEA has drafted legislation to amend the CSA to make clear that such State laws are preempted by the CSA. This draft legislation has been forwarded to the Department of Justice for review. In addition, from an operational perspective, DEA continues to carry out its statutory mandate to suppress marijuana trafficking, with particular focus on investigating and dismantling major trafficking organizations. Where the Department elected to seek civil injunctions against several California ``cannabis clubs,'' which claimed to be distributing marijuana under the guise of Proposition 215, DEA agents gathered evidence against the clubs, which provided the factual basis for the issuance of injunctions that ordered the clubs to cease their trafficking activities. Question 3. What action, if any, is the DEA taking against physicians who prescribe or distribute marijuana to patients? Answer 3. Because marijuana is a schedule I controlled substance, it is a criminal violation of the CSA for any physician to prescribe or distribute it to anyone. If DEA learns that any physician has prescribed or distributed marijuana, we will investigate the matter fully and, as the evidence dictates, seek the appropriate criminal prosecution or administrative action to revoke the physician's DEA registration. Question 4. Will the DEA take action against physicians who recommend, as opposed to prescribe, marijuana use for patients? If so, how will DEA keep track of these physicians? Answer 4. If a physician ``recommends'' marijuana with intent to facilitate the patient's unlawful manufacture, distribution, or possession of marijuana, this constitutes aiding and abetting a CSA violation, which is a criminal offense. In such circumstances, DEA will seek criminal prosecution and take administrative action to revoke the physician's DEA registration. Where the physician ``recommends'' marijuana without criminal intent to facilitate a violation of the CSA, the situation is more complicated. On December 30, 1996, the Attorney General and the Director of the Office of National Drug Control Policy announced at a press conference that a practitioner's action of recommending a schedule I controlled substance is not consistent with the ``public interest'' (as that phrase is used in the CSA) and will lead to administrative action by DEA to revoke the practitioner's registration. Based on this statement, the United States was sued by a group of Californians who claimed that doctors have a ``free speech'' right to recommend that their patients violate the CSA by using marijuana. As a result of this lawsuit (Conant v. McCaffrey), the United States has been preliminarily enjoined from taking administrative action against California physicians who ``recommend'' marijuana to their patients unless the physician engages in conduct that ``rise[s] to the level of a criminal offense.'' Although DEA and the Department believe that the Conant preliminary injunction was issued without legal basis and should be reversed, DEA has abided by the court's order and will continue to do so while it remains in effect. Federally maintained databases such as NADDIS provide information on whether an individual has been investigated, arrested, prosecuted, or convicted for violating the CSA. DEA also maintains a database indicating the registration status of DEA registrants. v. mexico Question 1. Mexican Trafficking: Recent news reports that Mexico, long a transshipment country for cocaine and a source country for marijuana, heroin and, increasingly, methamphetamine, has slipped backward in its effort to root out and dismantle powerful drug cartels. According to news reports, cocaine and marijuana seizures in the southwestern U.S. and along Mexico's pacific coast have escalated dramatically in the past two years. Seventy percent of all illicit drugs enter the U.S. from Mexico along the southwestern border, and between 1991 and 1998 seizures of marijuana have increased from 113 tons to 720 tons. At the same time, cocaine loads off Mexico's Pacific coast have increased dramatically. For example, on August 13, 1999, the Coast Guard stopped a Mexican fishing vessel stuffed with 10.5 tons of cocaine. In short, according to DEA, ``Mexico-based trafficking organizations . . . have enhanced and strengthened their production, smuggling and distribution capabilities to ensure a continuous supply of drugs to U.S. communities.'' Do you agree with this assessment? AND, What is your strategy to address this problem? Answer 1. Yes, Mexican drug trafficking organizations continue to grow exponentially in their power and influence over the illicit drug market. Over the past several years these organizations have been responsible for the vast majority of cocaine, marijuana and methamphetamine entering this country. Intelligence indicates that during 1999, there was a detected shift in drug smuggling activity from the Atlantic coast of the Yucatan peninsula to the Pacific coast of Mexico. In an effort to strengthen DEA's efforts along the Southwest Border, DEA has developed a three-pronged approach: maintain a coordinated presence in Mexico, along the border; establish ``off site'' locations in the U.S. where agents from both sides of the border can meet and discuss ongoing investigations; and, to encourage and enhance the Vetted Units Program in Mexico. The following three steps have been implemented to enhance binational cooperation between the United States Government (USG) and Mexico in combating the shared threat posed by international drug trafficking: 1. First, in 1997, DEA, through the Department of State, petitioned the Government of Mexico (GOM) to increase the DEA's agent personnel by six in order to establish the Tijuana and Ciudad Juarez Resident Offices. These two offices, which became operational in January 1998, were designed to collect intelligence and work closely with the Bilateral Task Forces (BTF) in the two most active drug smuggling corridors along the Southwest Border, controlled by the Arellano-Felix Organization and the Amado Carrillo-Fuentes Organization, respectively. The BTFs, however, remain insufficiently staffed and funded by the GOM. Although originally envisioned to have an investigate staff of eighty- four GOM drug agents assigned to the BTFs, to date the GOM has not met that goal. 2. Second, in an effort to enhance coordination of U.S. law enforcement and the BTFs, as well as to improve bilateral investigations, DEA has acquired office space in three U.S. cities--San Diego, California; and El Paso and McAllen, Texas. These sites serve as investigative coordination sites. In that capacity, they afford agents from the BTFs, DEA's Mexico Resident Offices (ROs) and domestic field offices from DEA, the FBI, and the U.S. Customs Service, a location to meet on a regular basis and exchange information on defined trafficking organizations operating along the southwest border. 3. Third, the results to date have been very disappointing. Nonetheless, I believe that the vetting process is our best chance at ensuring integrity with our counterparts in Mexico. DEA will remain actively engaged with GOM counterparts, and will continue to sensitize them to the realities of the vetting process. To that end, a Vetted Unit Program survey report was recently completed pursuant to bilateral survey conducted in November and December 1999. Although the report reflects weaknesses in the overall Program, it was mutually agreed by the GOM and USG to meet several objectives which would improve the effectiveness of the Program in Mexico. As part of the GOM commitment to improving the Vetted Unit Program, at the recent International Drug Enforcement Conference (IDEC), the Mexican Drug Czar, Mariano Herran-Salvatti, informed DEA that he requested that an additional 50 FEADS Agents be assigned to the vetted program in May 2000. Many of these new agents will be deployed to the northern border of Mexico and support the BTFs targeting transnational drug trafficking. In addition to USG establishment and supporting the development of the Vetted Units Program, DEA participating with the U.S. Department of Defense, and the U.S. Customs Service (USCS) to support GOM interdiction efforts by providing ``real time'' leads on air, sea, and overland smuggling events detected by the Intelligence and Analytical Center (IAC) which is housed and supervised by the DEA Mexico City Country Office. Question 2. Mexican Cartels: With respect to Mexican cartels, what strategic plan do you have for dismantling their operations in the United States? How extensive are their operations here? Is it still the case that the Mexican government refuses to extradite to the United States high level drug traffickers who are Mexican citizens? Answer 2. DEA, in concert with other federal agencies, has established an integrated, coordinated law enforcement effort designed to attack the command and control structure of these Mexican drug trafficking organizations. This strategy focuses on intelligence and enforcement efforts, which target drug distribution systems with the U.S. and directs resources toward the disruption of those principal drug trafficking organizations. Its mission is to coordinate and support regional and national criminal investigations and prosecutions against the members of these organizations. The DEA, the FBI and the U.S. Customs Service, along with many of our state and local counterparts across the country have been very successful and very effective at that strategy over the last several years. We have repeatedly conducted major operations inside the United States that have wiped out Mexican-controlled cells operating here in this country. However, until we can reach the leaders of these organizations who operate safely outside the U.S., these organizations will continue to flourish. Extradition: The aforementioned major organizations based in Mexico have a demonstrable negative impact on the United States. U.S. law enforcement routinely obtains indictments in U.S. judicial districts against the leaders of these groups. Yet, no major drug traffickers were extradited to the U.S. in 1999. The GOM did extradite 10 lower level fugitives on narcotics or money laundering offenses in 1999-- eight U.S. citizens and two Mexican citizens. In 1999, 35 persons, 20 of which are considered major drug traffickers by DEA, were in Mexican custody and subject to extradition proceedings based on U.S. provisional arrest warrants and extradition requests. A flawed Mexican judicial system protects traffickers through the appeals process. Additionally, some Mexican Courts have held that life imprisonment is unconstitutional. If other courts followed this rationale, extraditable Mexican drug traffickers who face life sentences in the United States will not be extradited by the GOM. Extradition is a key element, perhaps the most important element at the present time, in breaking the cycle of corruption and intimidation in Mexico. Question 3. Mexican cooperation with law enforcement: As a result of the power of Mexican drug cartels, many of our border regions are becoming low-intensity war zones. In recent weeks, Tijuana, Mexico has seen another police chief assassinated, three Federal narcotics investigators kidnapped, brutally tortured, and murdered, and an epidemic of lesser drug-related killings. Things have gotten so bad that, according to recently published reports, the DEA is considering pulling its agents out of Mexico. What is the current state of affairs in Mexico? Do you fell comfortable working with the Mexican government on investigations of major Mexican trafficking organizations? And, are you considering removing your agents from that country? What steps short of that could be taken to ensure the safety of our agents who work there? Answer 3. State of affairs in mexico: Drug-related violence has long been commonplace in Mexico. Within the last year, however, drug- related violence has increased in intensity and visibility. In addition to the increasing violence that is manifested by trafficking rivalries within and between trafficking organizations, of particular concern is the increasing violence that has manifested itself through the execution of GOM officials as well as threats and assaults directed against U.S. Government personnel by Mexican drug trafficking organizations. Working with the Government of Mexico: DEA is supplying support and assistance in the FEAD's investigation of major trafficking organizations. In spite of problems with understaffing, inadequate allocation of funds, vetting and corruption issues, DEA continues to support the Mexican Vetted United Program. DEA fully believes that the Vetted Unit Program is the best strategy to continue to develop a work force necessary to adequately combat major Mexican drug trafficking syndicates responsible for smuggling the majority of cocaine into the U.S. Until the GOM addresses and rectifies the aforementioned problems, however, DEA has no alternative other than to proceed with extreme caution before sharing information in bilateral investigations with any GOM law enforcement entity. DEA will remain actively engaged with GOM counterparts, and will continue to sensitize them to the realities of the vetting process, but will continue to proceed with extreme caution. Removal of DEA Agents from Mexico: The safety of DEA personnel assigned to Mexico is an issue of tremendous concern for DEA today. I would be happy to brief you and the Senate Judiciary Committee in closed session to discuss the full range of security options we employ and are considering to protect our Special Agents in Mexico. Question 4. Extradition: Your predecessor, Thomas A. Constantine, was critical of the drug interdiction efforts of both the Clinton Administration and the Mexican government. In comments to the New York Times, he criticized President Clinton for refusing to heed DEA's analysis of the Mexico situation and paying scant attention to interdiction efforts along the border. In Mr. Constantine's words, ``I watched [the Mexico] situation for five and a half years, and every years it became worse . . . [w]e were not adequately protecting the citizens of the United States from these organized crime figures.'' Constantine also commented on the rampant corruption in Mexico: ``Every time we had a major case involving a criminal organization from Mexico operating in the United States, there was a significant allegation of corruption involving the Mexican Attorney General's office, a Mexican state police force, or the highway police.'' On a Nightline appearance last year, Constantine suggested that we provide the Mexican government a list of 30 major traffickers we want arrested and extradited, and then pressure them to meet the goal. Do you agree with Mr. Constantine's assessment? Answer 4. I substantially agree with Mr. Constantine's assessment of the situation in Mexico. Corruption is a critical problem in Mexico's effort to arrest major drug traffickers. No major drug traffickers were extradited to the United States in 1999. At the end of 1999, there were 35 persons, 20 of which are considered major drug traffickers by DEA, in Mexican custody and subject to extradition proceedings based on U.S. provisional arrest warrants and extradition requests. Not one major drug traffickerhas been extradited to the United States. The DEA, FBI and the Department of Justice are in the process of finalizing a list of priority extraditions of Mexican drug traffickers in which a reasonable expectation of a successful prosecution in the United States exists. Question 5. Mexican corruption: The pervasive corruption in Mexican law enforcement is especially troubling in view of a recent information-sharing agreement reached between the Clinton Administration and Mexico. The agreement, known as the ``Brownsville Agreement,'' grew out of Mexico's anger over Operation Casablanca, a long-term U.S. Customs undercover operation that was active in Mexico and that targeted Mexican banks and bankers involved in laundering drug money. The Mexican government was incensed upon learning of the investigation in 1998, and pursuant to our agreement with them, we have agreed to provide the Mexicans with written notice in advance of operational activities in Mexico by our federal law enforcement agencies. Given the corruption among Mexican authorities, there is substantial concern among our law enforcement community that this policy will endanger lives and undermine interdiction efforts. What is your view of this agreement with the Mexican government? Answer 5. In September 1999, DOJ completed the implementation of the Brownsville/Merida Agreement. Mechanisms are in place for each country to contact the other when cross border investigative activity is to physically occur in the country. In support of this agreement, the MCCO Attache has implemented a policy for all U.S. Law Enforcement Agencies to better coordinate bilateral investigative activities emanating from the U.S. We coordinate our general activities with the GOM authorities and we have thus far been able to make this approach work. DEA remains concerned about corruption in Mexico. This is best illustrated by the December 1999 statement in which the GOM reported that since April 1997 through 1999 more than 1,400 of the 3,500 federal police officers had been fired for corruption. However, only 357 of these officers have been prosecuted. Therefore, DEA limits its information sharing to Mexican officials who are either vetted or at the highest levels of the Mexican law enforcement community. vi. heroin Question 1. Heroin strategy: Throughout the past 8 years we have seen the troubling developments concerning the price and purity of heroin, perhaps the most insidious of controlled substances. The price, both that paid by users for small amounts and that paid by dealers for larger amounts, has dropped significantly. The purity, which tends to decrease when supply is reduced, has increased to its highest level in the past twenty years. Unfortunately, this does not surprise me, for throughout the term of this Administration I have been urging the President--often to no avail--to devote sufficient attention and resources to drug interdiction. Where is the heroin coming from? What is your strategy to stanch the flow of this drug into our country? And, will you pledge that your voice will be insistent and, if necessary, loud in convincing this Administration that a drug policy that gives short shrift to interdiction is doomed to failure? Answer 1. According to CIA estimates, total illicit worldwide opium poppy cultivation in 1999 was 176,305 hectares (435,650 acres). Approximately 64 percent were located in Southeast Asia; 30 percent in Southwest Asia; and 6 percent in Latin America. There is no single set of numbers to express how much of this cultivation ends up as heroin coming into the United States. However, DEA believes that the overwhelming majority of the heroin entering the United States comes from Latin America. A recent draft interagency study on global heroin estimated current U.S. demand for heroin at about 18 metric tons. Estimates more commonly range between 12 and 14 metric tons. The heroin consumption estimates vary due to the high degree of variability in patterns of use, as well as inconsistencies in reporting and the imprecision of available data, particularly addict populations, dosage levels, and frequency of use. While not all of the world's illicit opium production is converted into heroin, if it were all converted, the total potential 1999 crop could have produced 287 metric tons. Of this amount, in Latin America, potential heroin production was divided between Colombia (8 metric tons) and Mexico (4 metric tons). DEA believes the vast bulk of Colombian and Mexican heroin is destined for the United States. The heroin from Colombia and Mexico could, therefore, account for anywhere from two-thirds to essentially all of the U.S. heroin consumption, depending on the consumption estimate used. There are a set of measures and estimates which DEA uses to indicate the sources of heroin. While there are no formal, interagency flows estimates for heroin, similar to the formal, interagency flows methodology for cocaine presented in the Interagency Assessment of Cocaine Movement [IACM], the measures used by DEA tend to confirm Mexico and Colombia as the sources for the heroin coming into the United States. The Heroin Signature Program [HSP] samples seizures at U.S. ports of entry and a random selection of seizures and purchases in the United States. According to the HSP, in 1998[the most recent year for which information has been calculated], 65% of the heroin seized is from South America. The Domestic Monitor Program [DMP] makes purchases in 23 major U.S. cities. According to the samples for 1998 [the most recent year for which data has been calculated], 99.6% of the heroin in the retail markets west of the Mississippi river was from Mexico; 83% of the heroin east of the Mississippi was from South America. Heroin trafficking is more geographically dispersed than trafficking of any other illegal drug. Heroin originating in one area has a separate and distinct supply mechanism than heroin originating in another area. The trafficking of heroin from Colombia, Mexico, Southeast Asia, and Southwest Asia involves numerous ethnic groups, transportation modes and methods, as well as numerous countries of transit. The four source areas have completely different producers, processors, transporters, organizers, financiers, and distributors. In addition, the many languages and cultural differences present tremendous communications barriers. The upper echelons of the major trafficking organizations have been extremely resourceful in resisting and even thwarting traditional intelligence collection and enforcement efforts. Events of recent years have shown, however, that success can be achieved through well- coordinated international enforcement efforts, prosecution, and, when applicable, extradition. At the same time, DEA remains alert to the emergence of key figures to fill the voids created by the immobilization of their former leaders. As such, DEA's strategy in attacking heroin trafficking from source countries into the United States provides prioritized operational emphasis for all DEA elements--domestic, foreign and Headquarters--to disrupt and destroy major heroin trafficking organizations by focusing operational efforts against heroin production and refining; the transporters, brokers, and bankers; and U.S. domestic distributors. This strategy encompasses well-coordinated national and international investigations that combine the operational and intelligence resources of the United States, working in concert with host country law enforcement authorities to identify, target, arrest and prosecute the major figures in the international heroin traffic. Specific initiatives included within this strategy for each source area include increased intelligence collection on major regional and interstate heroin trafficking organizations, increased use of pen registers and Title III communications interceptions, and expanding and enhancing cooperative efforts with state, local and other Federal law enforcement agencies. Undoubtedly, interdiction is a vital component of any law enforcement strategy that attempts to diminish the flow of illicit drugs into the United States. Interdiction in the transit and arrival zones disrupts drug flow, increases risks to traffickers, drives them to less efficient routes and methods, and prevents significant amounts of drugs from reaching the United States. As such, I strongly support and recognize the necessity of a comprehensive interdiction strategy that is intelligence driven and can be effectively managed and controlled. Currently, in response to a tasking in the 1999 National Drug Control Strategy, the Interdiction Committee (TIC) chartered the development of an Arrival Zone Interdiction Plan. To develop the Plan, the TIC appointed an Arrival Zone Interdiction Coordinator, supported by a staff of agency representatives, to include the DEA. Primarily, this staff would develop and coordinate national interdiction plans and operations, coordinate national analysis and research on strategic areas and promote information sharing among Federal, state and local law enforcement agencies. Question 2. Needle exchange. You may recall that during last year's negotiations concerning appropriations for the District of Columbia, there was a pitched battle over whether entities in the District could devote taxpayers money to a needle exchange program for drug addicts. The Republican Congress, to its credit, took the view that money could not be used, directly or indirectly, to subsidize such morally repugnant activity. Allowing money to be used that way would also, in my view, undermine the message we must be sending to our youth: that drug use is always, without exception, harmful. Unfortunately, the Clinton Administration took a slightly different view, and that view prevailed in the debate. As a result, at least one facility here in the District is handing out needles to drug addicts. Do you support the idea of needle exchanges? Should there be a strict ban on using taxpayer money, directly or indirectly for such programs? Answer 2. I am opposed to needle exchange programs because I believe that providing needles to addicts normalizes drug use and is a first step towards legalization. While stopping the spread of AIDS is certainly a laudable goal, providing needles to addicts sends a terrible message to the children of America who are all at risk for drug use. Good government consistently protects public safety, security and health. Needle exchange programs violate that principle by facilitating drug use and overdose deaths. I oppose the use of taxpayer money, both directly and indirectly, for needle exchange programs, anywhere in the United States. vii. interagency cooperation Question 1. In recent years federal law enforcement agencies other than the DEA, including the FBI, Customs Service, and the Coast Guard, have all taken more prominent roles in investigating drug trafficking. This has reportedly created some tension, and turf battles in some cases, between and among some of these federal agencies. The American public should benefit from having more law enforcement agents, regardless of what agency they work for, working to combat the flow of illegal drugs into this country. Federal agencies should be cooperating, not competing, with one another to obtain what should be everyone's ultimate goal, which is to stop illegal drugs from entering this country and keep drugs that are on the streets out of the reach of our youth. What challenges has this interagency approach presented to the DEA? Do you have any specific ideas that you plan to implement to ensure that the DEA works efficiently and effectively with other federal agencies, such as the FBI, to target drug trafficking? Answer 1. First, I view drug trafficking as nothing less than a threat to United States national security. Thus, I strongly believe that leveraging the entire United States Government in a sustained, cooperative, and coordinated fashion is the surest way to protect Americans and American interests from the threat posed by international drug trafficking. Over the past decade, the nature and extent of drug trafficking has changed significantly. Consequently, investigations that in previous years would have been confined solely to drug violations, now frequently crosscut terrorism, money laundering, alien smuggling, and arms trafficking. Criminal and terrorist organizations that had no previous history of drug involvement, now turn to the drug trade in order to raise vast amounts of cash for their criminal and political agendas. The changing nature of the drug trade has necessitated an inter- agency approach to these new challenges. Just as the drug trafficking organizations DEA investigates have become more sophisticated, so must our government's responses. DEA fully supports the inter-agency approach to counter-narcotics investigations. We believe such an approach to be essential to effectively combating operationally sophisticated, well financed drug trafficking groups. DEA believes that cooperation has improved and is continuing to improve among Federal law enforcement agencies. I am not alone in this opinion; in fact, the 1998 Review of the U.S. Counterdrug Intelligence Architecture, states that information sharing has improved in the last five years, according to hundreds of Federal, state, and local officials interviewed. DEA is engaged in a number of programs in which interagency cooperation is critical. The following are several of these DEA programs. Special Operations Division: SOD is a joint national coordinating and support entity comprised of agents, analysts, and prosecutors from DOJ, Customs, FBI, and DEA. SOD performs seamlessly across both investigative agency and jurisdictional boundaries, providing field offices with sanitized, real-time analysis and synthesis of law enforcement information about targeted criminal organizations and also provides actionable ``tips and leads'' drawn from other sources for investigative action. Within SOD no distinction is made among the participating investigative agencies. Where appropriate, state and local authorities are fully integrated into SOD-coordinated operations. Without question, SOD is one of the most effective and innovative developments in U.S. drug enforcement. Linkage & Linear: For several years, DEA and the CIA have jointly chaired the Linkage and Linear programs, both of which are comprised of over a dozen Federal agencies from the law enforcement and intelligence communities. Linkage concentrates primarily on heroin trafficking in Southeast and Southwest Asia, while Linear targets organizations that traffic cocaine and heroin in the Western Hemisphere. Both Linear and Linkage regional hold regional meetings, bringing together senior and working-level experts throughout the Intelligence and Law Enforcement Communities. This cross-fertilization of these two programs has contributed markedly to their success and promoting cooperation. Interagency Exchange Programs: DEA has made excellent progress toward bridging the gaps that separate many Federal agencies. DEA has exchanged personnel, in the field and at headquarters, at the supervisory and SES levels in order to improve agency cooperation, break down cultural barriers, and carry lessons back to their respective agencies. Under DIAP Resolution Six, the FBI, and DEA have exchanged personnel in select foreign offices to improve information sharing and pass time-critical leads between foreign and domestic field offices. Counterdrug Intelligence Executive Secretariat (CDX): Perhaps one of the most significant developments in counternarcotics is a reformed drug intelligence architecture. DEA holds leadership roles in the new Counterdrug Intelligence Executive Secretariat (CDX) and the Counterdrug Intelligence Coordinating Group. These newly formed groups will greatly facilitate the smooth, timely, and efficient sharing of inter-agency intelligence drug related intelligence information across federal, state, and local agencies. ______ Responses of Donnie R. Marshall to Questions From Senator Thurmond Question 1. Funding for the DEA increased by about 50% in the past decade. What growth do you anticipate will be needed over the next five years for it to carry out its mission, including the need for special agents, support personnel and other resources? Answer 1. My overarching goal as the Administrator of the Drug Enforcement Administration will be to provide the leadership to ensure the DEA enter the 21st Century as the preeminent drug law enforcement organization in the world. I am personally committed to a DEA that will lead U.S. drug law enforcement by implementing intelligence-driven targeting and investigations through the increased collection and analysis of human and technical intelligence that identify the major drug threats. Attached is a copy of my vision statement which articulates the principles and goals that I am establishing as Administrator. This document was disseminated to all DEA employees several months ago. As Administrator, I will develop a clear, long-term strategy to execute enforcement tactics that target and attack the leadership and infrastructure of major drug syndicates, organizations, and gangs that are trafficking in elicit and illicit drugs that threaten this nation at the international, national, regional, and local levels. I will recruit, hire and train the work force needed to bring the strategy into reality. Hand in hand with growing the work force, I will develop leaders who are flexible and innovative to manage the highly technical and complex programs that will take DEA into the 21st Century. DEA's strategic goals for the next century will embrace multi- jurisdictional operations, and will coherently integrate organization, resource allocation, leadership development, interagency and international cooperation. Our strategic plan directs DEA efforts towards identifying and targeting three levels of narcotics violators: the powerful international drug traffickers who are responsible for all of the cocaine and heroin, and most of the methamphetamine and marijuana available in the United States; traffickers operating on a national and regional basis within the United States; and violent local drug traffickers who erode the quality of life in American communities. To fulfill our strategic goals, DEA will work in the new Century to achieve the following: 1. Strategic targeting at international organizations' command and control: Drug trafficking in the United States is controlled by organized international criminal syndicates headquartered mainly in Colombia and Mexico. Through increased funding for enforcement manpower and special support programs, DEA will identify and target the leadership of all of these organized crime groups in the U.S., including the surrogates who act as their wholesale outlets in the United States, and will seek provisional warrants for the arrest for extradition of the organizations leadership operating in foreign countries. With this strategy of targeting the command and control functions of organized crime, DEA will disrupt the ability of the organizations to conduct business and impede their ability to import drugs into the United States. This strategy will also facilitate the intelligence collection process which is critical to the interdiction of drugs. DEA will gain vital intelligence about the rest of the organization to use both in further disruption and dismantlement and in increasing the accuracy of information provided to intediction operations. 2. A hemispheric strategy for DEA: Independent cocaine and heroin trafficking organizations in Colombia, and the splinter groups from the Cali organization, are supplying the majority of cocaine and heroin to the Eastern United States. Many of these groups are returning to traditional smuggling routes in the Caribbean corridor to smuggle cocaine and heroin into the United States. DEA will continue to complement the Southwest Border Strategy with aggressive strategies in the Caribbean theater, targeting traffickers who use both regions to traffic drugs to the United States. While building cases against these criminal groups, DEA will employ intelligence gained from its investigations in coordination with Coast Guard, Treasury Department, and DoD assets, to substantially step up interdiction of smuggled drugs at geographic and transportation choke points. The concentration of the communications and ports of entry will amplify our ability to substantially increase the total amounts now seized at the international border and before reaching United States territory. 3. Suppression of violent crime: DEA is committed to reducing violent crime in America by targeting the most violent drug traffickers and removing them from communities across the nation. Through an integrated approach using DEA's Mobile Enforcement teams and our Regional Enforcement Team, along with state and local task forces, DEA will continue to conduct criminal investigations, and follow-on demand reduction programs to measurably improve the quality of life for citizens in communities around the country. 4. Strategic campaign against methamphetamine: Organized criminal organizations, based in Mexico, produce as much as 80 percent of the methamphetamine sold in the United States. The remainder is produced bysmaller, and dangerous ``mom and pop'' operations throughout regions of the country. DEA will continue to identify, target, and break up the major methamphetamine production and distribution networks in the United States. Using comprehensive controls against the diversion of precursor and essential chemicals, aggressive law enforcement on the Southwest Border, and cooperative enforcement with state and local authorities directed against clandestine labs in the United States, DEA is committed to eliminating methamphetamine production and trafficking. This methamphetamine strategy will target and immobilize the command and control of the international criminal organizations distributing methamphetamine from Mexico as well as domestic producers of methamphetamine. The reduction of methamphetamine labs in the United States will have a measurable effect on the environment and the safety of citizens and public safety officers who live and work in areas that are now flooded with these laboratories, and decrease the amount of methamphetamine manufactured in the United States. 5. Proactive heroin investigations: Through an enhanced presence overseas, in the Caribbean and in South Florida, DEA will continue to target Colombian heroin trafficking organizations responsible for the more than 60 percent of the heroin seized in the U.S. last year. By aggressively identifying and targeting major heroin traffickers, DEA will have a significant impact on reducing heroin trafficking in the United States. 6. Intelligence support to strategic and tactical operations: In support of operations against command and control functions of criminal drug trafficking organizations, DEA will increase resources devoted to Intelligence Specialists and support systems--the MERLIN backbone and sensitive programs. These actions are planned to increase the flow of actionable intelligence to enforcement elements in the field by 50 percent each year. These additional resources will leverage existing infrastructure, and make use of information gained during criminal investigations and operations against command and control elements of organized crime groups, making readily available in the field the critical intelligence needed to target the sophisticated elements of organized international criminal syndicates. 7. Manpower for the next century: To support the enforcement needs articulated in these goals, DEA will recruit, hire, and train outstanding candidates to meet the requirement of a Special Agent force of 6,500--and associated infrastructure and support positions including Intelligence Analysts--by the year 2003. In order to meet these ambitious goals, I intend to work with Congress to identify and obtain the necessary resources to meet these goals. It is critical that DEA's Special Agent force increase during the next five years, along with intelligence, infrastructure and technological assets that will enable us to serve the American public in an outstanding manner. Currently, Plan Colombia, which is pending before the Senate, contains critical resources, primarily in the intelligence area, which will assist DEA in meeting some of our challenges in the Andean region. Question 2. How can we build stronger ties with other nations involved in the fight against drugs? More specifically, I am interested in what we can do to assist nations such as Mexico and Colombia, who are on the front lines of the drug interdiction and suppression effort, and are paying a heavy price for their participation. Answer 2. In continued support to foreign nations assisting the United States in combating illegal drug trafficking, an extremely valuable approach is the strengthening of those nation's abilities to prosecute the leaders who wield command and control of powerful drug cartels located in countries such as Mexico and Colombia. One of the means by which to achieve this goal has been the Congressionally mandated vetted Sensitive Investigative Unit program, which was initiated several years ago. In 1996 the Attorney General directed the Drug Enforcement Administration to approach the Government of Mexico (GOM) and open a dialogue in order to ascertain the willingness of the GOM in forming well-trained, well-equipped vetted units. The discussions were successful and utilizing Department of State and DEA funds the first vetted unit began to take shape. Simultaneously, the Congress became interested in the approach and through the FY 1997 Appropriations Act directed DEA to continue the implementation of the vetted unit program in Mexico and also establish units in Bolivia, Colombia, and Peru. Along with this mandate came funds in the amount of $20 million to execute this directive. The Vetted Units Program concept has proved extremely valuable to DEA in initiating and conducting high-level international drug trafficking investigations internal and external to our borders. The fact that in the majority of countries where vetted units operate, our Special Agents work hand in hand with trustworthy, well-trained host nation Anti-Drug Federal Police Officers that has created an atmosphere that enables us to fully exploit all United States drug law enforcement and intelligence resources in an open and mutually beneficial environment. counter drug efforts in mexico With regards to the USG Strategy to work with the Government of Mexico, the DEA is supplying support and assistance in the FEADs investigation of major trafficking organizations. The FEADS Vetted Units, and Sensitive Investigative Unit (SIU), within the Organized Crime Unit (OCU), and the Bilateral Task Forces (BTFs) are the two primary investigative components conducting joint investigations. In addition to the BTFs and the SIU, the GOM has created FEADS ``floater'' task forces, which in some cases consist of FEADS agents who are vetted under standards approved by the USG, referred to supervetted agents. Several of these supervetted FEADS agents are assigned to the Mexico City International Airport Interdiction Unit and the Arellano-Felix Apprehension Task Force. These ``floater'' units consist of a mixture of both supervetted units and non-supervetted personnel, such as the OCU and special deployment units, i.e., Operation Impunity and Operation Millennium responses forces. In an effort to strengthen DEA's efforts along the Southwest Border, DEA has developed a three-pronged approach: maintain a coordinated presence in Mexico, along the border; establish ``off site'' locations in the U.S. where agents from both sides of the border can meet and discuss ongoing investigations; and, to encourage and enhance the Vetted Units Program in Mexico. The following three steps have been implemented to enhance binational cooperation between the USG and Mexico in combating the shared threat posed by international drug trafficking: First, in 1997, DEA, through the Department of State, petitioned the GOM to increase the DEA's agent personnel by six in order to establish the Tijuana and Ciudad Juarez Resident Offices. These two offices, which became operational in January 1998, were designed to collect intelligence and work closely with the BTFs in the two most active drug smuggling corridors along the Southwest Border, controlled by the Arellano-Felix Organization and the Amado Carrillo-Fuentes Organization, respectively. The BTFs, however, remain insufficiently staffed and funded by the GOM. Although originally envisioned to have an investigative staff of eighty-four GOM drug agents assigned to the BTFs, to date the GOM has not met that goal. Second, in an effort to enhance coordination of U.S. law enforcement and the BTFs, as well as to improve bilateral investigations, DEA has acquired office space in three U.S. cities--San Diego, California; and El Paso and McAllen, Texas. These sites serve as investigative coordination sites. In that capacity, they afford agents from the BTFs, DEA's Mexico Resident Offices (ROs) and domestic field offices from DEA, the FBI, and the U.S. Customs Service, a location to meet on a regular basis and exchange information on defined trafficking organizations operating along the southwest border. Third, although the results to date have been disappointing, DEA believes that the vetting process is our best chance at ensuring integrity with our counterparts in Mexico. DEA will remain actively engaged with GOM counterparts, and will continue to sensitize them to the realities of the vetting process. To that end, a Vetted Unit Program survey report was recently completed pursuant to a bilateral survey conducted in November and December 1999. Although the report reflects weaknesses in the overall Program, it was mutually agreed by the GOM and USG to meet several objectives, which would positively impact the effectiveness of the Program in Mexico. As part of the GOM commitment to improving the Vetted Unit Program, at the recent International Drug Enforcement Conference (IDEC), the Mexican Drug Czar, Mariano Herran-Salvatti, informed DEA that he requested that an additional 50 FEADS Agents be assigned to the vetted program in May 2000. Many of these new agents will be deployed to the northern border of Mexico and support the BTFs targeting transnational drug trafficking. counter drug efforts in colombia: the vetted units program Over the last three years, the DEA, in cooperation with Colombian law enforcement counterparts, has developed what is now recognized as the vetted unit or sensitive investigation unit (SIU) program. This program employs qualified law enforcement officials who have passed a U.S. established vetting process (i.e., personal interviews, background investigations, urinalysis testing, polygraph examination) and subsequently, participated in a 5-week DEA sponsored investigative course of study in the U.S. Additionally, many of these foreign agents receive more specialized training in the area of electronic surveillance and information systems management. The progress of the vetted unit program in Colombia has been tremendous. Many of the international investigative successes (i.e., Operation Millennium, Operation Atlantico, the Asprilla-Perea investigation and the Caracol investigation) over the last three years have been accomplished as a direct result of the significant contributions and capabilities of the SIU's. DEA has incorporated regionalization as an integral part of the vetted unit program. Representatives from the Colombian SIU units meet with their counterparts from other nations in the region with parallel programs on a semi-annual basis, set an agenda and discuss new techniques, strategies and issues of importance. Additionally, the units exchange ideas with the DEA on targeting major drug trafficking organizations operating throughout particular regions and the U.S. DEA anticipates a continued emphasis by the vetted units in providing direct support to U.S. based investigations and exploiting the ever changing vulnerabilities of major international drug trafficking organizations. Colombian National Police DIJIN Sensitive Investigations Unit This is the oldest and most successful of all the Bogota Country Office Sensitive Investigations Units (SIU). This unit is comprised of 57 Colombian National Police Officers from the DIJIN, the investigative branch of the Colombian National Police, along with selected vetted prosecutors. This unit is headquartered in Bogota and maintains satellite offices in Medellin, Cali, and Barranquilla. This unit was established to target major drug trafficking organizations throughout Colombia. This SIU enjoyed an outstanding rate of success during 1998 and 1999. Several significant organizations were pursued and either dismantled or severely disrupted as a result of aggressive complex investigative efforts. Similarly, a number of associated traffickers at the highest levels of these organizations were arrested. Many were arrested as a result of provisional warrants based on U.S. charges and are pending extradition. In support of bilateral initiatives, the SIU unit frequently provided evidence obtained from judicially authorized telephone intercepts to domestic DEA offices that led to the initiation of major investigations in the U.S. During 2000, additional personnel will be added to the unit in order to accommodate attrition and transfers, and to establish another satellite office in Cartagena, Colombia. The DEA will also upgrade and enhance the technical intelligence capability of this unit during FY- 00. Colombian National Police Intelligence Division Sensitive Investigations Unit This SIU is responsible for managing the day-to-day operational requirements of Operation Papagayo. Operation Papagayo is a communications intercept program conducted jointly with the DEA with logistical and technical support provided by DoD. The program has implemented five (5) collection sites dedicated to the identification of major manufacturing, transportation, chemical and drug trafficking organizations operating primarily in the Colombian Source Zone. This SIU also provides intelligence support relative to the movement of aircraft used to transport cocaine in the source zone and monitors the drug related activities of insurgents supporting drug traffickers in southern Colombia. This operation suffered several logistical and funding delays in 1999, which prevented the program from becoming fully operational. These issues are being addressed and it is anticipated that the program will continue to develop towards full operational capability. The DEA will continue to provide technical training and equipment to the members of this SIU in order to enhance their ability to collect counter drug intelligence. Colombian National Police Chemical Control Sensitive Investigations Unit In June 1998, the DEA converted the CNP Chemical Control Unit into a Sensitive Investigations Unit. This unit, which is comprised of 30 individuals operating on a national level, is tasked with identifying those individuals and/or chemical companies that are handling controlled chemicals, and that may be actively involved in diverting chemicals for the processing of cocaine and heroin. The unit is further charged with taking corrective actions as necessary to include the seizure of controlled chemicals, the arrest of persons found to be in complicity, and to make recommendations to annul or revoke chemical permits. During Fiscal Year 1999 this SIU was responsible for the seizure of approximately 123,203 kilograms (123 tons) of assorted controlled chemicals including 4.6 tons of potassium permanganate, the revocation of the chemical permits for at least 7 major chemical deviators, and the arrest of sixteen (16) individuals for their involvement in chemical trafficking. These figures represent investigations conducted jointly with the DEA. CNP unilateral investigations exceeded these figures. Departamento Administrativo de Seguridad (DAS) Sensitive Investigations Unit During late 1998, the DEA established a fourth SIU with the DAS and selected assigned prosecutors. This unit targets major money laundering organizations operating in Colombia. This unit consists of sixteen (16) agents and one supervisor based in the cities of Bogota and Cali, Colombia. During Fiscal Year 2000, the unit will continue to target major money laundering organizations operating in Colombia and abroad. Having provided significant support to several DEA domestic divisions since inception, this SIU will continue to support bilateral, and multi- national initiatives targeting major money laundering organizations. Besides the obvious case related results, another benefit has emerged in the open exchange of information between the nations participating in the program. This is especially true throughout Latin America. An offshoot of the program has been the formation of a professional association composed of the working level supervisors of the vetted Sensitive Investigative Units in Mexico and South America. The association has semi-annual meetings and the participants do not hesitate to communicate with each other about ongoing investigations in their respective jurisdictions. This had opened doors as never before and has set the stage for future cross border and multi-national operations. Some of the success of this program has recently come to light through media attention, testimony before various Congressional Committees, and GAO reports. In November of 1997 acting on the initial accomplishments of the original four country programs my predecessor approached the committee staff of the House Commerce, Justice, State and Judiciary Appropriations Subcommittee, to inquire into the potential expansion of this ever promising project. Through our Congressional Affairs Section, DEA was informed that expansion within the confines of the original fiscal appropriation into the countries of Brazil, Chile, Pakistan and Thailand would be a prudent measure. With this approval, we set about conducting country assessments and developing an implementation plan for the above countries. Today, we have fully operational units in Brazil, Pakistan and Thailand. The program in Chile is currently under review. We have maintained an open dialogue with representatives of the Chilean government in respect to this project and the possibility exists that a unit may be operational by early 2001. In order to capitalize on the momentum and successes of the program DEA has recently undertaken the establishment of two more units in the countries of Ecuador and Nigeria. The Ecuadorian group became operational in January 2000 and the Nigerian unit is projected to be in place by this coming winter. I have been advised that the U.S. Ambassadors and executive level law enforcement officials in Panama, Venezuela, Dominican Republic and the Bahamas are very interested in obtaining information about the program with the expressed desire of obtaining a vetted enforcement group. More recently, senior level DEA management answered inquiries from both the House and Senate Appropriations Committee as to how best to expand the program in the future. At this point in time and with the tremendous accomplishments this program has lent itself to, DEA is still within the spirit, intent and scope of the original congressional directive. DEA and its foreign law enforcement counterparts are making great strides in international narcotics enforcement through the vetted units and we will maintain the pressure on high level traffickers that this program brings to bare. In order to keep pace with the changing trends in international drug smuggling it is necessary for the program to grow in relation to the problem. Question 3. What efforts can the DEA and the Bureau of Prisons take to reduce drug dealing in federal penitentiaries, whether it be inmate to inmate drug trafficking and other related criminal offenses conducted via the Internet? Answer 3. The DEA continues to pursue new and innovative ways to reduce drug trafficking networks that operate within and from federal and state prisons. Although the Bureau of Prisons routinely refer their inmate drug trafficking cases to the Federal Bureau of Investigation, in recent years, DEA has had a number of high-profile investigations of involving prison drug operations. One of them was the 1995 investigation of Chicago's Black Gangster Disciple Nation, one of the nation's most dangerous criminal organizations. The August 1995 investigation, which was carried out in conjunction with other federal, state, and local law enforcement and prison officials, resulted in the arrest of 22 BGDN members. Among those convicted in the investigation was BGDN leader Larry Hoover who reportedly ordered more than 500 killings, oversaw extortion and witness intimidation, and controlled much of the city's drug market--all from prison. Since the mid-1970s, Hoover has been in Illinois state prisons serving a 200-year sentence for murder. Moreover, the intelligence generated from this and other investigations is extraordinarily valuable in developing other investigations. It is widely agreed--within the U.S. law enforcement and intelligence communities--that the Internet and technology are reshaping crime, particularly the U.S. and international drug trades. Increasingly, traffickers are turning to the Internet, computers, and other technology in order to protect and expand their criminal operations. Consequently, DEA operations and intelligence are being drawn into new areas of ``digital evidence, analysis, and investigations.'' DEA has defined narco-cybercrime as the unlawful use of the Internet, computers and other technology in furtherance of the illicit drug trade and the criminal activities of drug traffickers and their organizations. DEA will leverage its investigative and intelligence assets to target: the electronic communication of traffickers, the banking and financing of the drug trade; the unlawful online distribution of controlled substances and pharmaceuticals, listed chemicals, and drug paraphernalia; the recovery of digital evidence; and any other technology sectors that are exploited to promote the spread of controlled substances and drug-related violence. To maximize its resources and expertise, DEA created an Internet Technologies Unit. Headed by a Criminal Investigator, the unit will involve DEA's Computer Forensic Program and elements of the Advanced Telephony Unit. Working with other DEA offices, the new unit will monitor the Internet sale of illicit drugs, pharmaceuticals and controlled chemicals. Also, the Internet Technologies Unit will provide direct surveillance, interception and computer forensic analysis of digital data and communications resulting from illicit drug-related activity conducted over the Internet, Public Switched Telephone Network (PSTN), Cellular Network, or a combination of services. DEA created the Internet Technologies Unit based on the findings of a February 2000 internal study of the agency's capacity to keep pace with the rise of technology in the illicit drug trade. Having formed the Internet Technology Unit, the next step is for DEA to develop a strategic technology plan--which will leverage DEA's operational and intelligence capabilities--and enable DEA to stay ahead of the drug trade's technology into the years ahead. Question 4. Opium is the key ingredient in the production of morphine. The authorized producers of morphine are required to purchase 80 percent of the opium they use to manufacture the substance from India and Turkey. This requirement was instituted as a measure to combat illegal narcotics trafficking. According to my understanding, many American drug companies would like to see this restriction relaxed. In knowledge of this, the Drug Enforcement Administration is reviewing this long standing requirement. I am curious if you feel the time has come to amend the ``80/20'' rule, and if so, what effect do you think this will have? Furthermore, if American pharmaceutical companies turn to new sources for opium, will this mean that opium farmers in India and Turkey will begin supplying the black market, as they once did? Answer 4. The U.S. relies entirely on the importation of licitly produced narcotic raw material (NRM) (opium, poppy straw and concentrate of poppy straw (CPS)) for the manufacture of narcotic medicines such as morphine, codeine and their derivatives. In light of the illicit demand for and risk of diversion of NRM, particularly opium (which only India legitimately produces for export), a balance between global production and consumption of NRM is critical and the ultimate goal of international policy in this area. As the world's largest importer and consumer of NRM, the U.S. is in a position to significantly affect this balance. Consequently the U.S. has fully supported United Nations efforts to prevent the proliferation of countries cultivating licit opium for export and the overproduction of these materials by supplier countries. A critical part of the U.S. policy on NRM is the ``80/20'' Rule. This is a Drug Enforcement Administration regulation enacted in 1981 which allocates the importation of NRM between traditional suppliers (India and Turkey) and non-traditional suppliers (Australia, France, Hungary, Poland and the former Yugoslavia). Consistent with the annual United Nations' Economic and Social Council Resolutions (ECOSOC), the ``80/20'' rule favors the traditional suppliers, requiring U.S. companies to import at least 80 percent of the NRM from India and Turkey. No more than 20 percent of the NRM can be imported from the nontraditional suppliers and no NRM can be imported from any other country. The U.S. is the only country, which has adopted such a regulation in response to the ECOSOC resolutions. The DEA, in consultation with the Department of State, Bureau for International Narcotics and Law Enforcement Affairs (INL), has periodically assessed this longstanding policy. Each time, the conclusion was that this rule was successfully provided the U.S. pharmaceutical industry with adequate supplies of NRM to satisfy the narcotic requirements of the U.S. population while supporting the international objectives of discouraging overproduction and potential diversion. U.S. importers have routinely purchased approximately 90 percent of the NRM from India and Turkey. Recent events, however, at both the national and international levels, and major concerns by the two current U.S. importers, have prompted the DEA to conduct another evaluation of this regulation. Domestic and international demands for NRM for medicines to treat pain continue to increase. For example, global consumption of opiates increased from 217 MT in 1990 to 240 MT in 1999. Aggressive treatment of pain and an aging global population will ensure continued increasing demands for narcotic medicines.Uncertain production levels of opium in India and CPS in Turkey in recent years due to climatic conditions have let to concerns over global stocks. India's poor crop in 1998 resulted in an elimination of their stocks of opium. They increased the acreage planted in 1999 and had a good crop, which enabled them to somewhat replenish stocks. The increased production, without increased security measures, however, apparently led to significant levels of diversion, estimated by some Indian officials to be as high as 30 percent of the crop. An extremely important development has been the dramatic and continuing increase in demand for and consumption of thebaine based opiates, particularly oxycodone and buprenorphine, in the U.S. and elsewhere. Turkish CPS contains no thebaine and Indian opium yields a little more than 1 percent thebaine. U.S. demand for thebaine has increased from roughly six MT in the early and mid 1990s to more than 30 MT in 1999. Australian and French CPS contain significantly higher levels of thebaine Indian opium and Turkish CPS cannot supply the U.S. needs for thebaine. Since a prime consideration in U.S. NRM policy is to ensure an adequate supply of NRM to satisfy U.S. health needs, the DEA is considering modifying the ``80/20'' rule. Specifically, the DEA is evaluating an industry proposal to change the required allocation from traditional suppliers and to allow more of the NRM to be imported from nontraditional suppliers. The basic concepts of the policy would remain the same and the traditional suppliers would continue to be favored and could compete for the entire market. If this were enacted it is anticipated that the U.S. purchases of opium from India and CPS from Turkey would remain the same due to increasing demand for morphine based medicines. Most likely, importation of higher thebaine CPS from France and Australia would increase to meet U.S. needs for thebaine derived medicines. Notwithstanding the above, the ``80/20'' Rule is primarily a control regulation to discourage overproduction of NRM and the proliferation of countries cultivating and exporting opium. The DEA continues to evaluate the impact of any change in the ``80/20'' rule on potential diversion, particularly of Indian opium. As noted above, increased cultivation of Indian opium without a corresponding increase in security measures led to significant levels of diversion. Consequently, there is concern about the domestic diversion of Indian opium under current conditions. France and Australia, as well as Turkey, produce CPS that is not sought after by illicit traffickers. The DEA is continuing to review this regulation in an attempt to ensure a continued adequate supply of NRM in light of changing demands for the production of narcotic medicines needed by the American public while continuing to promote the necessary controls to discourage overproduction and diversion. Prior to implementing any change, the DEA would publish it as a proposal in the Federal Register, and provide ample opportunity for comment before a final decision is made. Question 5. Tracking the precursors used in making methamphetamine has been an effective tool for law enforcement. Has this approach been adopted by other nations around the world, where ``meth'' is a popular drug? Are there any other drugs where tracking the precursors would help us in our drug suppression efforts? Answer 5. Other nations are either experiencing methamphetamine abuse or are aware of it. Shipments of the precursor chemicals have been stopped in a number of nations they were destined for, such as, Mongolia, Samoa, Australia, Brazil, South Africa, Guatemala, Mexico, and Switzerland. DEA has also established Operation Purple, aimed at denying drug traffickers access to potassium permanganate, a chemical oxidizer used to remove impurities from cocaine base. Currently, 23 countries, the United Nations International Narcotics Control Board, ICPO-Interpol, and the World Customs Organization are actively participating in this effort. Between April 15, 1999 and January 31, 2000, Operation Purple has tracked 248 shipments of potassium permanganate totaling nearly 8 million kilograms. Thirty-two shipments (2,225,843 kilograms) were stopped/seized as a result of this operation. Thirty-one reported arrests worldwide have been reported since the operation began. DEA's Special Testing and Research Laboratory's in-house cocaine signature program to examine trends in cocaine processing indicates that the percentage of highly oxidized samples is now at an all time low and the percentage of minimally or not oxidized samples is at an all time high. The use of an oxidizing reagent is directly related to its availability and cost on the black market. Question 6. A recent New York Times article discusses plans to open an inn in Santa Cruz, California, for medical marijuana users. Should the federal government permit these types of operations, and how should authorities respond to them Answer 6. Under the Controlled Substances Act (CSA), marijuana is classified as a schedule I controlled substance. By definition, schedule I controlled substances have ``no currently accepted medical use in treatment in the United States'' and a ``lack of accepted safety for use * * * under medical supervision.'' The CSA therefore prohibits the use of marijuana outside of research that has been approved by the Food and Drug Administration and registered with DEA. Accordingly, it is a criminal violation of the CSA for any person to manufacture or distribute marijuana outside of federally authorized research. It is also a criminal violation of the CSA to open, maintain, or manage any place for the purpose of manufacturing, distributing, or using any controlled substance. Using any premises to manufacture or distribute marijuana, or to allow persons to smoke marijuana, clearly violates the CSA and endangers the public health and safety. To address such premises, DEA supports utilizing the full range of legal options provided under the CSA, including criminal prosecution of the operators, forfeiture of the premises, and seizure of the marijuana and related contraband. Question 7. The DEA has a very extensive screening process to evaluate candidates prior to employment. What program or procedures does the DEA have to assure the integrity of current employees? Answer 7. DEA's very existence and success as a law enforcement agency rests upon the public's perception of our honesty, credibility and integrity. For those reasons, the public's trust and confidence in DEA is paramount and goes to the deepest core of our ability to carry out the agency's mission. To that end, I believe that it is absolutely imperative that every action possible is taken to ensure that only those candidates who pass stringent screening processes are hired, and that there are established mechanisms in place to ensure that once these individuals are on board that they clearly understand throughout their career what is considered to be ethical behavior. In order to attain and retain the public's trust and support, we must constantly strive to ensure that our personal and professional integrity is beyond reproach and that unethical behavior is immediately investigated and dealt with in an appropriate manner. This is reinforced continually in that once an individual has passed all required screening processes and has been hired by DEA, he or she must certify annually in writing that he or she has read and understood DEA's standards of conduct. Integrity is stressed to DEA's supervisors and managers since they play an integral role in an effective integrity program. Every supervisor and manager is responsible for assuring that his/her subordinates are fully aware of and understand the standards of conduct and all DEA regulations and policies applicable to the performance of his/her duties. Supervisors and managers are also accountable for monitoring their subordinates' compliance with regulations and policies and when necessary, for taking appropriate action to correct deficiencies and/or reporting misconduct through the chain of command to DEA's Office of Professional Responsibility (OPR). Further, memoranda are continually issued that address the basic tenets of the responsibilities of DEA employees, supervisors, and managers. I have personally issued many such memoranda in which I stress that we should be very proud of DEA's record in this area and our overall public image, but that DEA employees must continue to maintain the highest standards of personal integrity and judgment, both on and off duty, to avoid conduct which may undermine that trust. For example, I issued a cable that spoke only to alcohol-related incidents in which I stressed that such behavior erodes the respect for and trust among agents and betrays the privilege that has been entrusted to them to protect and serve the public. I am also in the process of preparing a video, to be distributed DEA-wide, which will reiterate the agency's policies on integrity, ethics and conduct, and will specifically address the use of alcohol by employees and the penalties for violating established policies. I also believe that the agency's philosophy must be consistently carried out by those entities involved in DEA's investigative and disciplinary process. Accordingly, I have personally met with members of the disciplinary and investigative process to explain the agency's philosophy and to instruct them that proven severe misconduct, to include alcohol-related misconduct, should be dealt with in a harsh manner. Since becoming acting administrator, I have named a new Chief Inspector. I have requested that the new Chief Inspector review our current investigative process to see if there are procedures that could be implemented to expedite the process in that we want to address these issues in the most efficient manner. Further, the system in place to address issues of wrongdoing are formalized into the DEA system of discipline, which is distinguished by being centralized and three-tiered. Specifically, DEA has an investigative body, a proposing body, and a deciding body. This system allows for a normal check and balance and encourages consistency. I have also made adjustments in the personnel involved in the adjudication of discipline to ensure that the agency's philosophy is carried out, and I have created a new executive level position and requested a slot for it to oversee the disciplinary process. I believe that discipline must be fair and equitable for all employees. At the same time, the system has to ensure that the agency's integrity remains intact and that the faith of the public is maintained. When misconduct occurs that erodes public faith and or the integrity of the agency, it must be dealt with swiftly and appropriately. In addition to the effort in the discipline areas, the agency has, within the last two years, instituted a vigorous suitability review process to ensure that our agency and investigative work force is fit to carry out their duties. This review is fully described in the attached suitability section. Another vital aspect of an agency's integrity program is the provision of ethics training throughout an employee's career. Accordingly, applicants selected for core positions attend a basic training program during which they receive extensive ethics training strategically dispersed throughout the course. The program has been redesigned to stress this critical dimension of law enforcement and emphasizes the positive aspects of integrity and police ethics. Furthermore, the curricula for other internal training programs have been revised to incorporate and/or expand the coverage of ethics and integrity issues. This includes refresher training for all core series employees and supervisory and managerial training. For supervisory training programs, emphasis has been added to integrity issues and the supervisors' responsibility and accountability for the enforcement of integrity issues at their levels. Additionally, OPR and the components of the disciplinary review process make presentations at internal training sessions for employees at all levels and at management conferences. Finally, DEA employees are subject to random drug screening. If an employee refuses to undergo this screen, removal action is initiated. Further, if an employee has a confirmed positive drug test result, by executive order, he or she must be immediately ``removed'' from his or her position. The positive test result is immediately reported to OPR and the case is forwarded through the disciplinary process. To date, all employees who have tested positive for an illicit drug have either resigned or have been removed from DEA and the federal service. In summary, I remain completely committed in ensuring that DEA represents itself in the most ethical and trustworthy manner possible. That is why I continually urge all employees to use restraint and sound judgment at all times, and to remember the special privileges that they hold and the responsibilities which accompany those privileges. Question 8. What procedures are in place for DEA to dismantle, transport, store, and dispose of waste products from clandestine methamphetamine production? Answer 8. DEA has established effective procedures for the seizure of all clandestine drug laboratories, including methamphetamine. Dismantling, transporting, storing and disposing of the seized chemicals and contaminated apparatus are part of a comprehensive plan to ensure officer safety and protection of the environment. There are seven steps associated with the dismantling, transporting, storing and disposing of the seized chemicals and contaminated apparatus of a clandestine drug laboratory: Planning the Raid: Step 1 In planning the raid, the case agent first makes an assessment of the hazards likely to be encountered and determines who needs to be notified before the raid (i.e., local police, fire department, emergency rooms, and hazardous waste contractor). Once the potential hazards have been considered, the case agent assigns certified teams to conduct the raid. These teams include a forensic chemist and a site safety agent who are trained and equipped with requisite safety equipment. During the raid planning, consideration is given to when to call the hazardous waste contractor. Initial Entry: Step 2 The purpose of the initial entry is to apprehend and remove the operators and to secure the laboratory. DEA protocol calls for the initial entry team to employ ballistic protection equipment and fire retardant clothing. The initial entry team does not use respiratory protection [i.e., Scientifically Controlled Breathing Apparatus (SCBA)] because it may restrict an agent's vision and mobility. This may significantly interfere with an agent's ability to defend against armed suspects. This protocol was adopted after careful consideration of the pros and cons and is based largely on the experiences of field agents. The protocol does, however, require that at least one person be on stand-by, suited-up in protective clothing and respiratory protection, as a precautionary measure. Assessment: Step 3 After securing the premises, everyone is evacuated. Then a specially trained and certified agent and forensic chemist with OSHA Level B protective equipment conduct a thorough assessment to determine what, if any, immediate health and safety risks (i.e., potential for fire and explosion, toxic vapors, booby-traps, etc.) exist. The team then takes appropriate steps to reduce imminent risks (i.e., properly shutting down active ``cooking'' processes, ventilating the premises, etc.). After the assessment team determines the level of risk and establishes the appropriate level of protection required, the processing phase can begin. Processing: Step 4 During the processing phase, agents photograph and/or videotape everything in the laboratory and then gather evidence. No materials or apparatus are moved until the certified chemist and agent have inspected and inventoried each piece of evidence. The certified chemist, in consultation with the agent, takes samples as needed for evidence. All samples are labeled, initialed, packaged, and sealed for transportation to a DEA laboratory. The recommended one-ounce sample size is typically sufficient for DEA drug analysis and, if necessary, a reanalysis. It is after all evidence is taken that the processing team dismantles the clandestine drug laboratory. The team does not take possession of, or transport any chemicals, glassware, or apparatus used in the laboratory other than the samples taken for evidence. (These tasks are discussed below.) Depending on the size of the seized laboratory and safety considerations, qualified members of the team may remove the chemicals and contaminated apparatus from inside a building to a consolidation point outside the structure. Upon arrival at the clandestine drug site, the hazardous waste contractor can then, more quickly, prepare the waste for shipment. A qualified hazardous waste disposal contractor is used to remove all remaining chemicals (liquids and powders), and laboratory glassware and equipment from the site. DEA considers all of these materials to be contaminated and, therefore, manages them as hazardous waste. When the processing has been completed, the case agent authorizes the disposal contractor to remove and dispose of all hazardous waste. The case agent verifies and accounts for all hazardous wastes to be removed. For safety and security reasons, a DEA agent remains at the site until the disposal contractor has completely removed the hazardous waste. The disposal contractor removes any contaminated protective clothing and equipment that cannot be decontaminated and reused. Decontamination of equipment is not a requirement of the DEA contract, however, removal and disposal of contaminated equipment and ``decon water'' is part of the DEA contract requirements. Exit: Step 5 When the removal of these hazardous wastes has been completed, the case agent conducts a final inspection of the premises, ensures that a DEA representative signs a Receipt for Services and other documents pertaining to the site and, posts a prominent warning sign on the premises. Follow-up: Step 6 The Special Agent in Charge (SAC) of the DEA division sends notification letters to the property owner, with copies to appropriate health and regulatory agencies. All of these letters are sent by certified mail, return receipt requested. Transportation, storage and disposal: Step 7 For the last ten years, DEA has contracted with qualified hazardous waste, emergency response and removal contractors. These companies provide the trained personnel and equipment to properly characterize the seized chemicals according to the Environmental Protection Agency's Resource Conservation and Recovery Act (RCRA). The DEA contractors also ensure that all federal, state and local regulations associated with the transportation, storage and disposal are met. Only RCRA permitted facilities are used for the treatment, storage and disposal of hazardous waste seized by DEA. Response times are critical to the efficient removal of the seized chemicals and contaminated apparatus. DEA's contracts have improved response times to minimize overtime associated with waiting for the contractors. In addition to an early ``call-out'' to position the contractor near the suspect site, the current contract has nearly three-times as many contract areas (29) as the original contract (10) thereby reducing the response times. Since the DEA contractors are in the emergency response, hazardous waste removal business, they are accustomed to meeting DEA response-time contract requirements. These requirements include returning an initial phone call within 15 minutes, mobilizing a crew and responding within the legal speed limit and road conditions. Experience gained by DEA in preparing hazardous waste contracts has improved the efficiency and helped lower the cost. Ten years ago, the average cost per cleanup was approximately $17,000. Today, the average cost of a clandestine drug laboratory cleanup is approximately $4,000. Some jurisdictions have claimed the cost of cleanup is exorbitant. But closer examination has revealed that labor costs for state/local employees often are not considered. Also, in many instances, wastes are not managed in strict adherence to established standards. On at least two occasions, disposal costs were not fully taken into consideration because the state/local contractor was working under a ``no-cost'' or ``reduced cost'' arrangement as part of a penalty for previous environmental crimes. Question 9. How far along is DEA in establishing the Clandestine Laboratory Database? How will the information in the database be compiled and what efforts if any are being established to share this information with other members of the law enforcement community? Answer 9. I am very happy to report that the Clandestine Laboratory Seizure System (CLSS) which is maintained at the El Paso Intelligence Center (EPIC), was completed at the end of March 2000. This system is completely operational and has connectivity to the Western States Information Network (WSIN), the West Texas HIDTA, and the Midwest HIDTA. There are presently over 22,000 CLS records provided by DEA and WSIN in this new database. In addition, the Midwest HIDTA, which has approximately 5,000 records, is presently inputting records into the database. Our counterparts at WSIN have indicated that they will begin sending records to be input into the database on a quarterly basis. CLS telecommunication links presently exist to WSIN, the Midwest HIDTA and the West Texas HIDTA through a secure dial-up communication network. Efforts are presently underway to establish a telecommunication link with the Regional Information Sharing System (RISS) central switching center that has the possibility of providing connectivity to an additional 5,000 users who are a part of the RISS community. Furthermore, efforts are also underway to provide a telecommunication link to the remaining 29 HIDTA's and other Federal agencies to include DEA. All of the envisioned connections will provide for interactive query and reporting of the data in the CLS database. Finally, EPIC is in the process of providing a minimum pointer index query capability to the National Law Enforcement Telecommunications System (NLETS) user community. This avenue will have the capability of providing restricted CLS access to an additional 58,800 state and local agencies. Question 10. Does DEA offer assistance to other federal, state, and local law enforcement agencies in investigating and dismantling clandestine methamphetamine trafficking operations? If so how? Answer 10. Yes, especially in the area of providing the specialized training and equipment, mandated by federal regulations, for state and local law enforcement officers who participate in raiding these hazardous locations. We conservatively estimate at least 80 percent of the state and local law enforcement officers in the nation who are ``safety certified'' to process methamphetamine laboratories received their initial one week training certification from the DEA Clandestine Laboratory Training Unit. In FY-1995, DEA trained and ``certified'' 118 law enforcement officers to raid clandestine drug labs. In FY-1999, 1,366 students graduated from the DEA Clandestine Laboratory Safety School. Each of these officers were issued over $2,000 in specialized clandestine laboratory safety equipment. Plans have been formulated to provide clandestine laboratory training to 1,968 law enforcement officers in FY-2000. These figures do not include the thousands of law enforcement officers and civilian personnel who have received DEA training in shorter classes and seminars on clandestine lab awareness, investigations, and/or annual recertification training in conferences across the country. The significantly larger number of officers/agents who have been ``safety certified'' to raid clandestine laboratories, as well as the recent significant national drop in methamphetamine purity (71.9 percent in 1994 compared to 31.1 percent in 1999), have been a factor in the dramatic rise in clandestine laboratory seizures. Obviously, the more officers/agents who are trained to investigate clandestine labs will have a significant impact on the number of labs seized. In the enforcement/operations arena, DEA is also on the forefront of efforts to combat methamphetamine production, but the role DEA plays in some regions of the country may be different than others, depending on the nature of the methamphetamine problem in that region. DEA Clandestine Laboratory Enforcement Teams in the Midwest U.S. have traditionally been very active in the seizure of the small ``mom and pop'' operations because of the lower numbers of local/state police officers who are trained to conduct methamphetamine laboratory raids. The number of clandestine laboratory seizures in which DEA participated has increased from 362 in CY-1995 (327 methamphetamine) to 2,021 in CY- 1999 (1,986 methamphetamine). This is a 458 percent increase in only five years. The combined DEA and state/local police clandestine lab seizures for CY-1999, reported to the National Clandestine Laboratory Database at EPIC, was 7,010 laboratories (6,793 methamphetamine), and reports for CY-1999 lab seizures are still coming in from state and local police agencies across the country. In contrast to the Midwest states, California's methamphetamine problem is long-standing and that state has developed an expertise in dealing with this serious problem. The state of California does not require federal assistance in the seizure of the smaller production laboratory operations since there are a significant number of local and state police who are trained to perform this role. DEA efforts in California are primarily focused on the investigations of the larger lab production operations which produce thevast majority of the methamphetamine in the U.S. and the command and control structure of the significant Mexican drug trafficking organizations who operate them. In addition, DEA's Special Operations Division and Office of Diversion Control are actively involved with state and local police in chemical interdiction operations. In many Midwest and eastern U.S. states, clandestine laboratory operations are a relatively new phenomenon, and DEA lab teams are therefore more actively involved in the seizure of small production lab operations in these regions. This is because of the lower numbers of state/local police officers who are trained and do not have the adequate equipment to respond to the growing number of small production lab seizures. Another method which the DEA utilizes to disrupt and dismantle methamphetamine manufacturing and distribution organizations is through its highly successful Mobile Enforcement Team (MET) Program. Since the program's inception in early 1995, approximately 27 distinct methamphetamine trafficking organizations have been targeted and disrupted. All ten deployments which took place within the San Francisco Division, targeted methamphetamine distribution organizations. Of the deployments which occurred in the Seattle, San Diego, and Phoenix Divisions, the preponderance of MET deployments targeted methamphetamine trafficking organizations. The Dallas and Denver Divisions each targeted two specific methamphetamine distribution organizations during their MET deployments. The majority of MET deployments in the United States target polydrug trafficking organizations, many of which traffic in methamphetamine to varying degrees. DEA has also provided much needed assistance to state/local police agencies in the cleanup of clandestine laboratories through the COPS program. In 1999, DEA conducted more than 3,800 clandestine laboratory cleanup operations--the majority of which were state or local police agency requests for assistance. The average cleanup cost of approximately $4,000, varies by region, but DEA in some cases has facilitated the cleanup of clandestine laboratories which cost in excess of $100,000. The seizure of a large lab or multiple small lab operations could easily bankrupt a small police department or rural sheriff's office, and it is critical for the federal government to assist these smaller departments as they address the methamphetamine problem. Question 11. What other initiatives are being implemented to enhance the methamphetamine program? Answer 11. DEA has formulated plans to establish a ``Dangerous Drug Desk'' to further enhance and coordinate the current programs and limited resources in DEA Methamphetamine Program. The ``Dangerous Drug Desk'' at DEA Headquarters would upgrade the DEA Methamphetamine Program from a collateral duty of the Domestic Operations West Section to a primary component of the new Desk. In view of the unique nature and challenge of synthetic drug production operations (methamphetamine, MDMA, GHB, etc.), the investigation of these synthetic production and trafficking operations, as well as the specialized training, equipment, chemical interdiction, and investigative techniques required to combat them, would become the coordination responsibility of this new Desk. DEA was allocated $1,975,000 from a Congressional Appropriation for FY-2000 for the purchase of specialized lab raid safety equipment. In view of the dramatic increase in clandestine laboratory seizures in recent years, coupled with related fires, explosions, and toxic chemical injuries associated with these laboratories, a Clandestine Laboratory Safety Equipment funding site has been established within the DEA Methamphetamine Program. This funding is essential for officer safety and security. I understand that the Department of Justice (DOJ) has received approval from OMB to reprogram 10 million of DOJ funds to DEA and that this request has been sent to the Congress. This funding is being utilized to purchase and distribute a variety of specialized safety equipment, ranging from air monitors to chemical protection suits, to every domestic DEA field division to ensure agents and local police officers in DEA task force operations engaging in the high risk activity of executing raids on clandestine drug laboratories, have the essential tools to process these laboratories in a safe and prudent manner. The funding allocation for clandestine laboratory safety equipment is now a DEA recurring budget item. These funds may be used for both safety equipment and/or the purchase and repair of laboratory safety vehicles/trucks. DEA has also utilized other funding to purchase and distribute nine new specialized Clandestine Laboratory Safety Vehicles (trucks) to the field divisions. Plans have been formulated for the continued distribution of this funding to the DEA Clandestine Laboratory Coordinators for the purchase of safety equipment and/or future raid truck repairs. The percentage distributed to each field division is based primarily upon the number of clandestine laboratories which are seized in its respective region. Some of this funding will be forwarded to the DEA laboratories to provide safety equipment to the DEA chemists who also participate in the hazard assessment and processing stages of clandestine laboratory seizures. In addition to plans to streamline DEA Headquarters and field enforcement efforts to combat methamphetamine, DEA has formulated plans to enhance DEA training programs for state and local police involved in clandestine laboratory investigations. In Calendar Year (CY) 2000, the DEA Office of Training has formulated programs for theimplementation of three additional courses designed for state and local officers. These additional courses will assist state and local law enforcement agencies by providing advanced clandestine laboratory training, specialized tactical raid training, and a new clandestine laboratory awareness training course, in addition to the one week certification schools currently provided to officers nationwide. This program is designed to provide training to a pool of state and local law enforcement instructors in clandestine laboratory awareness and safety. Once trained, these police instructors will be provided with training material that can be utilized by them to conduct recertification training and awareness seminars throughout their respective states. The DEA Office of Training has met with the executive board of the International Association of Directors of Law Enforcement Standards and Training (IADLEST) who have set up a seven member board consisting of regional directors to meet with the DEA Office of Training and assist in the implementation of the above mentioned training programs. As mandated in Section 504 of Public law 104-237, known as the Comprehensive Methamphetamine Control Act of 1996, DEA established the Suspicious Orders Task Force. The task force was established on September 3, 1997. It was represented by law enforcement at the federal and state level and by different aspects of the chemical industry. The task force developed proposals for identifying indicators of suspicious orders in the various segments of industry. It considered payment practices and unusual business practices in attempting to identify prima facie suspicious orders. They developed recommendations at the retail level for recognizing suspicious transactions and suggested voluntary actions. Within the Office of Diversion, the following initiatives were established: The Letter of No Objection (LONO)--Initiated in 1994 at the request of the people's Republic of China. Subsequently, the governments of the Czech Republic and India requested that the United States provide LONOs for proposed imports of ephedrine and pseudoephedrine. The Chinese government requests LONOs for all List I chemicals exported from China and Hong Kong. As a result of the LONO program, in 1999, 156.11 metric tons of ephedrine and pseudoephedrine were not imported. The Warning Letter Program--In every instance involved the seizure of precursor tablets at either clandestine lab sites or in cases where they have been dumped, letters are sent to the manufacturer and distribution, if it is known, stating the date of occurrence, the amount of bottles seized, the lot number of the drug product, and the name of the state and city where the seizure occurred. Operation Back-Track--A DEA-run operation consisting of 150 investigation in 45 offices. As of February 15, 2000, there have been 224 arrests, 137.3 million dosage units of precursor chemical seized, and $10,811,396 in seized assets. Question 12. The report of the Commission on the Advancement of Federal Law Enforcement said that both the DEA and FBI consider themselves to have the same drug enforcement mission, and the Commission recommended that the DEA should be lodged within the FBI. What is your view regarding this recommendation? Answer 12. I strongly oppose a DEA-FBI merger. In the last 20 years, the illicit drug trade has risen from a cottage industry into the world's most powerful and corruptive criminal enterprise. Simply, the drug trade is too large and complex to be led by an agency with numerous and competing jurisdictions. Today, more than ever, the power and sophistication of the drug trade require the United States to have a single-mission agency to lead drug investigations, as well as to collect, analyze, and disseminate valuable drug intelligence to other U.S. agencies. The DEA has proven its ability to target international cartels and domestic gangs, because of its single-mission focus. DEA enables the U.S. Government to carry out long-term and sustained drug investigations without diverting its resources to other investigations, such as bombings and cyber attacks. Overseas, DEA is widely accepted by foreign counterparts as the lead U.S. drug enforcement agency with no other investigative or intelligence jurisdiction. This trust enables DEA to build lasting foreign relationships that produce drug investigations, arrests, and extraditions of drug traffickers that threaten Americans. Equally important, DEA's single-mission ha enabled it to build a cadre of Agents and Analysts with unique expertise that enable them to penetrate and understand the complexity of drug trade. Additionally, over the past five years, cooperation between the DEA and the FBI has increased significantly, leading to enhanced collaboration in our Special Operations Division and field divisions around the country. In short, I strongly believe that a merger would dilute the nation's successful anti-drug effort, cause a significant loss of momentum in enforcement activities, and send mixed signals to the American public and drug organizations about U.S. commitment to fight drugs at a time when powerful internationally-based drug trafficking organizations abound and drug use among young people has increased. Question 13. A few weeks ago, the DEA dismantled a drug smuggling ring that used FedEx employees to transport marijuana around the nation for a Mexican drug cartel. FedEx has stated that its security system first detected the activity. Is drug smuggling through package delivery services a growing problem? Also, do other carriers, both private and the U.S. Postal Service, have security standards that are equal to or better than FedEx in detecting drug smuggling? Answer 13. Historically, DEA has worked in conjunction with the various commercial delivery services with outstanding success. As you know, DEA, in cooperation with Federal Express (FedEx), just recently culminated an 18-month nationwide investigation resulting in the arrests of over 100 individuals, the seizure of 34,000 pounds of marijuana and $4.2 million in U.S. currency and assets. Those charged include 25 employees of FedEx Corporation, including a FedEx security official in New York City, customer service representatives and drivers. Federal complaints and indictments charge various members of the organization with the importation and distribution of more than 100 tons of marijuana. Furthermore, several of the defendants were charged with using FedEx Corporation airplanes, trucks and facilities across the country to ship the marijuana with an estimated wholesale value of $140 million. This ongoing investigation is just one example of the cooperation between private delivery services and DEA in relation to narcotics trafficking. In addition, DEA routinely coordinates various investigative efforts with the U.S. Postal Service and U.S. Customs Service. Furthermore, it should be noted that while DEA supports and cooperates with the various package delivery services, DEA is not privy to or in control of the security standards set by private industry. It is my intention, however, to direct the DEA Operations Division to coordinate meetings with the respective heads of the various commercial package delivery services. It is my expectation that these meetings will be the impetus for a more cohesive strategy between DEA and private industry relative to the problem of drug smuggling through these services. For your information, I have included statistics from DEA's Operation Jetway, which includes mail/parcel seizures reported to the El Paso Intelligence Center (EPIC) by Federal, state and local law enforcement agencies from calendar year 1995 through the first quarter of calendar year 2000. Current Year 95: 988 total seizure incidents accounting for 6,134 kilograms of marijuana; 275 kilograms of Cocaine; 6 kilograms of Heroin; over $2.3 million in currency and 18 weapons. Current Year 96: 1,993 total seizure incidents accounting for 12,505 kilograms of Marijuana; 240 kilograms of Cocaine; 4 kilograms of Heroin; over $2.8 million in currency and 17 weapons. Current Year 97: 1,697 total seizures accounting for 11,870 kilograms of Marijuana; 1897 kilograms of Cocaine; 19 kilograms of Heroin; over $3.2 million in currency and 31 weapons. Current Year 98: 1,432 total seizure incidents accounting for 15,475 kilograms of Marijuana; 278 kilograms of Cocaine; 5 kilograms of Heroin; over $2.3 million in currency and 18 weapons. Current Year 99: 1,557 total seizure incidents accounting for $9,843 kilograms of Marijuana; 303 kilograms of Cocaine; 1 kilogram of Heroin; over $3.4 million in currency and 61 weapons. Current Year 00 (1st Quarter): 575 total seizure incidents accounting for 4,362 kilograms of Marijuana; 67 kilograms of Cocaine; 1 kilogram of Heroin; over $.5 million in currency and 14 weapons. Of particular note is the seizure of weapons associated with the various drug seizures. [GRAPHIC] [TIFF OMITTED] T3031A.545 NOMINATIONS OF ALLEN R. SNYDER (U.S. CIRCUIT JUDGE); JAMES J. BRADY, BERLE M. SCHILLER, PETRESE B. TUCKER, R. BARCLAY SURRICK, AND MARY A. McLAUGHLIN (U.S. DISTRICT JUDGES) ---------- WEDNESDAY, MAY 10, 2000 U.S. Senate, Committee on the Judiciary, Washington, DC. The committee met, pursuant to notice, at 3:07 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter, presiding. Also present: Senators Biden and Smith. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Specter. [presiding]. Good afternoon, ladies and gentlemen. We are going to proceed with the Judiciary Committee hearing on confirmation of six nominees for the Federal bench. My comments are going to be somewhat more extensive than customary. So I would yield at this time to Senator Breaux, who is here to present a nominee, to economize on his time. He probably has other matters to attend to after he makes his introductory comments. Senator Breaux, thank you for joining us. I welcome you here and look forward to your comments on James. J. Brady. STATEMENT OF HON. JOHN B. BREAUX, A U.S. SENATOR FROM THE STATE OF LOUISIANA Senator Breaux. Thank you very much, Mr. Chairman, and, Senator Biden, thank you very much for both being here at the hearing. I am very pleased to be here today to introduce Jim Brady. In fact, you have no idea how pleased I am to be here today to introduce Jim Brady, perhaps only exceeded by the pleasure of the nominee for having an opportunity to come before the committee. Before I mention Jim Brady, I would just say, Mr. Chairman, that this is a vacancy in East Baton Rouge, Louisiana, in the Middle District of Louisiana, but just as an idea of how desperately needed is this nominee, back in September of 1998, which is the last number we had, there were 8,860 cases pending in this Middle District. The district is second in the United States in terms of pending cases per judgeship. As an example, there are almost 3,000 cases per judge in this district, and it is absolutely, I think, impossible to do justice when you have a caseload of that magnitude. So the committee does a real service today on moving on the President's nominee of Jim Brady. Let me just say a word or two about Jim Brady. I think that we often have opportunities to recommend to this committee distinguished students of the law, professors of law, people who have written eloquently about the Constitution and about the laws of our land, and these nominees always bring something very special to the committee. I think also it is important when you have the opportunity to bring a person before this committee who is a person of the people, who understands the daily workings of a trial court lawyer, who has practiced law in large cities in Louisiana, but also in relatively small communities, who really knows and understands what it is like to be in a Federal court before a Federal judge, and to be on this side of the bench when you have a client who is very unsure of what might happen. So I think it is good that we have opportunities to have different types of people serve in these very important positions. Certainly, Jim Brady with his background as a distinguished graduate of law in Louisiana, receiving his bachelor's degree from Southeastern University, his jurisdoctorate from Louisiana State University, and all of the other extracurricular activities that he has participated in, it certainly qualifies from the standpoint of knowing the law and doing a good job in that regard. But he brings something that I think is even equally as important and that is the high regard of his colleagues, those who have practiced law with him in the small towns and the small courtrooms throughout the State of Louisiana. He is now practicing with the law firm of Gordon, Arata, McCollam, Duplatnis & Eagan. He has been there since 1997 and has been a member of distinguished firms throughout his career in the State of Louisiana. He has served on the Board of Tax Appeals, and he is an adjunct professor of law for Louisiana State University. He has participated in the trials in all courts in our land. So this is the type of person, I think, that knows people and knows the law and can serve with great distinction in this very honorable profession. So, both myself and Mary Landrieu, who has a statement, Mr. Chairman, that I will ask to be made part of the record, are in support of this nominee, and we urge that the committee look favorable upon his confirmation by this distinguished panel. Thank you, Mr. Chairman. Senator Specter. Thank you very much, Senator Breaux. We have four nominees from the Eastern District of Pennsylvania who will be presented to the committee by both Senator Santorum and myself. These are four distinguished individuals, two who are currently serving on the Court of Common Pleas, one in Philadelphia County and one in Delaware County, one who is a former judge of the Superior Court of Pennsylvania, and the fourth, a very distinguished Philadelphia lawyer. The nomination hearings today in a sense break a logjam where we have had some seven vacancies, and a determination has been made to move four forward to confirmation at this time. There is, as is widely known, some difference of opinion as to the confirmation of judges so close to an election, and it was the judgment on the consensus basis that this would be a good accommodation to move four judges at the present time. There are candidly some in the Republican Caucus, not that it is a secret, who would like to move no judges at all in an election year. We have broken that logjam in a number of matters. With my concurrence, we recently confirmed Judge Paez and Judge Berzon in the Court of Appeals for the Ninth Circuit. There had been occasions when my distinguishedcolleague, Senator Biden, chaired this committee when in an election year there were limits as to how many judges were to be confirmed. I mention that only by way of background, and to say that there are two other very distinguished individuals who have been nominated by the President, Judge Lagrone Davis, of Common Pleas Court, and Mr. David Fineman who is on the board of the Postal system. I had talked to both of them to tell them what the considerations were. It is still possible the logjam could be broken further. It is perhaps doubtful, but I think it is fair to say that they are very highly regarded. Their names are in the public domain because their nominations have been submitted. I am personally committed to supporting them, as are others, and we will see what events will occur with respect to those nominees. Candidly, if a Democrat is elected to the Presidency, all the nominations will move through as rapidly as possible. If a Republican is nominated, then there ought to be some choice there. In selecting the number of four, I personally consulted with a chief judge of the U.S. District Court, Judge Giles, who said he would be happy to see four judges confirmed. Of course, he would be happier to see seven judges confirmed, but this is looking at a complex picture. I also conferred with Chief Judge Edward Becker of the Court of Appeals for the Third Circuit who also thought that four confirmations could accommodate the work of the Eastern District Court. Our nominees are Berle M. Schiller, who has a very distinguished record as a Philadelphia lawyer, and having served on the Superior Court of Pennsylvania for 4 years. He graduated from New York University School of Law in 1968, bachelor's from Bowdoin College, was an associate with Blank, Rome firm in Philadelphia, was a Deputy Attorney General, was a partner in Astor, Weiss, served as chief counsel to the Federal Transit administration, and as I say was a Superior Court judge in Pennsylvania. Petrese B. Tucker, Judge Tucker, is now a Court of Common Pleas judge in Philadelphia County where she has had a distinguished record since 1987, having served now almost 13 years. She is a graduate of Temple University, 1976, from the law school and a bachelor's degree from Temple University in 1973. She clerked to a very distinguished Philadelphia judge, Judge Lawrence Prattis. She was in the Philadelphia District Attorney's Office as an assistant District Attorney. She served as an adjunct professor part time to the Great Lakes College Association, and she was a senior trial attorney with the Southeastern Pennsylvania Transit Authority. Judge R. Barclay Surrick comes to this nomination, having been a judge on the Court of Common Pleas for Delaware County for some 22 years. He is a graduate of Dickinson College in 1960, Dickinson Law School in 1965, and a master's degree from the University of Virginia. He served as a public defender. He served in private practice, was an associate with Lutz, Fronfield, and, as I say, has been a judge on the Common Pleas Court for 22 years. Mary McLaughlin, Esquire, is a partner in the law firm of Dechert, Price & Rhoads, has her bachelor's degree from Gwynedd-Mercy College, a master's from Bryn Mawr, and a law degree from the University of Pennsylvania, 1976, Magna Cum Laude. She served as a law clerk to Judge Brotman in the Federal Court of New Jersey, was an associate with Arnold & Porter, was an assistant professor of law at Vanderbilt University School of Law, adjunct professor at the University of Pennsylvania, was an adjunct professor at Rutgers in 1989, and did distinguished service for the Judiciary Committee on the investigation into Ruby Ridge in 1995. For some 14 years, she has been a partner at Dechert, Price & Rhoads. Before yielding to my distinguished colleague from Pennsylvania, let me yield to my good friend from Delaware who was chairman of this committee, Senator Biden. STATMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE STATE OF DELAWARE Senator Biden. Thank you very much. I am happy we are finally moving on the Eastern District the way we are, and I know that you have been pushing. My view is, and maybe I am wrong, that if you had your way, all seven vacancies would be filled now. I do want the record to note, though, that when I was chairman of this committee, not only did we confirm a lot more judges, we confirmed 66 judges when the last year Bush was President. You can ask Phil Gramm this of Texas. I confirmed five judges over the objection of my colleagues, with 4 hours left to go in the last day, the last hours in the evening, which prompted Phil Gramm to come up and thank me and say something complimentary. He said, ``By the way, I just want you to know, I would never do it for you.'' That is why I like him. He is straightforward. It is true. You all are not doing it for us, and it is a shame that we are not. I must also point out, and I admit that I am not representative of my caucus, that during the Reagan years, I am the guy that introduced the bill to add 88 additional District Court judges during a Republican administration, over the objection of my entire caucus. So we did not slow them up like now. Unfortunately, I think the Democrats will have learned the wrong lesson from the conduct of the caucus this last 4 years. If President Bush is elected, I can assure you, and not with my concurrence, you will see most of the judges stopped who are Republican judges, and it is a shame because the judges should be above politics in this. There are certain things where there are clear disagreements about the ideology of a judge, and that is worth fighting over and we should fight over it. We should identify those judges if there is a problem and just go to battle on them, but, if not, we should move the judges that are not controversial. I am hopeful that we will not learn the lesson, but my experience after 28 years here is that whatever the Democrats do to the Republicans, the next group will come along, learn the lesson, and take it to a higher grade level. It used to be when I was Ranking Member and Strom Thurmond was chairman, he would say no judges would be confirmed after the conventions, and that is what was done. When I became chairman, I said no, we are not going to have that rule, we will go straight up to the time we adjourn. After I lost the chairmanship, we went back to initially the summer. Now we are even back to something that starts at 4 years out, and I think we have set a terrible precedent and I think we are going to pay for it. I will conclude by saying this. There was a recent article written by a national columnist that was shown to me. I will tell you. It was by Kamen. There was a line in there saying the Democrats say the Republicans are holding up judges, and that when Biden was chairman, they let through--and they named all the judges let through. He said, in parentheses, ``Biden has a quaint notion''--that is the quote--``a quaint notion that qualified judges for the District and Circuit Court should be above the political fray in an election year.'' He went on to say, ``Too bad Kennedy and Leahy could not have gotten Biden in a dark alley and changed his mind about that back then,'' meaning if I had done what you have done, we would not have had the Republican judges. I am no longer chairman. Others are. I promise you, they do not have to get me in a back alley. They are already in a back alley, and they are waiting and it is a shame. It is a shame. We have set a horrible precedent. But with that, we are here today and we have got four distinguished people who both you guys are supporting, and I am proud of that, that you are doing it. They will help the caseload on the Eastern District. We have a Circuit Court of Appeals judge for the District Court Circuit, and we have a Louisiana judge. So, hopefully, we can move through and gentleman these six and maybe get a few more before this year is over, but I have told everyone, and I want to tell the press, if the Republican Party lets through more than 30 judges this year, I will buy you all dinner. And by the way, there are 90 vacancies. Senator Specter. Thank you very much, Senator Biden. Senator Santorum. I am very happy you let him go first. Senator Specter. Senator Biden and I, as has been noted, have a very congenial relationship from having taken more train rides together from Philadelphia to Wilmington over the past 20 years than I think any two Senators in history, at least we know of none---- Senator Biden. That is true. Senator Specter [continuing]. Who can compare with that kind of a conversation record, and record of general agreement. Senator Santorum, thank you for your diligent work on bringing the four nominees to the fore today, and the floor is yours. STATEMENT OF HON. RICK SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Senator Santorum. Thank you, Mr. Chairman. I just first want to associate myself with all of your remarks. I think you stated first off their qualifications and the process that we have been going through here the last couple of years to try to fill vacancies here in Philadelphia, in the Eastern District. We do have seven vacancies, but I will remind the committee that it was not until just last month that we only had two of those seven vacancies where there were nominations. I think Senator Specter and I can come to this committee with clean hands saying we were trying to move nominations, but it is hard to move nominations when we do not have nominees. Senator Biden. I was not speaking of either one of you individually. Senator Santorum. I know you were not, but I just want to make it clear for those who may sort of cast this all in the same pot. Senator Specter and I have been very anxious to fill not only these vacancies in the Eastern District, but, frankly, we have two vacancies in the Western District which only one has been nominated and we were hoping for another nominee so we could move both of those. We do now have six. Senator Specter laid out the case that we believe four is an achievable number. We think that is going to be a very tough thing to accomplish, but we feel that the qualifications of the four candidates that we have moved forward are impeccable and they will stand up very, very well. I am not going to go through those qualifications. Senator Specter did a more than adequate job in doing so, but I just want to lend my support for all four nominees. I believe it is, again, four very distinguished people, three of whom have records of judicial experience that are quite admirable, one on the Superior Court, one with over 20 years in the Common Pleas Court, and one with over 10 years on the Common Pleas Court, and someone who is known on this committee very well for her excellent work on the subcommittee dealing with Ruby Ridge, all of which have fine resumes here. I think from my personal interaction with them, they have the kind of temperament and record that I think will meet with success not just in this committee, but I am hopeful will meet with success in getting them scheduled on the floor and then passed in an expeditious manner. So, with that, Mr. Chairman, I thank you for the opportunity. Senator Specter. Thank you very much, Senator Santorum. We now welcome our distinguished colleague, Senator John Warner. STATEMENT OF HON. JOHN W. WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA Senator Warner. Thank you, Mr. Chairman, my good friend, Senator Biden, and Senator Smith. Senator Biden, on your subject, I did not hear the opening comments of our distinguished chairman, Mr. Specter, but---- Senator Specter. I would be glad to repeat them for you, Senator. Senator Warner. Oh, that is all right, but I hope you had the benefit of the statistics that we shared with a luncheon group today, the usual Wednesday luncheon group. We discussed this subject for a half-hour, and I must say Senator Hatch spoke up very eloquently and said how hard and courageous he is trying to be on this issue. Senator Biden. Do you think you will get more than 30 judges for the whole year, John? Senator Warner. Well, I am just telling you what occurred. Senator Biden. I understand. I am just curious. Senator Warner. I was commenting on his leadership. Senator Specter. Do you want the witness to be sworn? [Laughter.] Senator Warner. So there are some very interesting statistics out there going back over the various administrations. At first glance, I do not think we are too far apart from the norm of what has been done through the years. Nevertheless, gentlemen, I am here today, and I am really privileged and honored to be here to introduce this very outstanding nominee to serve on the Circuit Court of Appeals to the District of Columbia. I must say, if I could add a personal note, following my graduation from the University of Virginia Law School in 1953, I was privileged to serve as law clerk to Judge E. Barrett Prettyman, the United States Circuit Court of Appeals for the D.C. Circuit. Judge Prettyman later became chief judge, and with the help of my 99 colleagues in the United States Senate, I was privileged to name the Federal Courthouse in honor of Judge Prettyman. I must say, today, in this room, sits Judge Prettyman's son, my lifelong friend, E. Barrett Prettyman, Jr., who brought to my attention this eminent and extraordinarily well-qualified nominee to go on that bench. Today, almost 47 years after having served as law clerk for the now-late Judge Prettyman on this Federal Appeals Court, I am pleased to support the nomination of Allen Snyder to the same court on which Judge Prettyman once served. Mr. Snyder has received the top ranking--I repeat the top ranking--of the ABA Standing Committee on the Federal Judiciary, and his record indicates that he will serve certainly as an excellent jurist. After graduating Phi Beta Kappa from George Washington University in 1967, Mr. Snyder went to Harvard Law School where he served as editor of the Harvard Law Review and graduated with an A average, Magna Cum Laude. All of these achievements, I never reached that pinnacle, and that is why, I guess, I am here and not on the court. Mr. Snyder then had the honor to serve as the law clerk to two United States Supreme Court Justices, as did Judge Prettyman's son, I may add, at the time I served his father. Having clerked for Justice John Harlan and later clerking for the current Chief Justice of the United States Supreme Court, Chief Justice William Rehnquist. After completing his clerkship, Mr. Snyder worked as an associate for the law firm of Williams & Connolly and later became a partner of my old law firm, Hogan & Hartson. Mr. Snyder has been a partner with Hogan & Hartson since 1979 and is currently chair of the firm's litigation practice area. In addition to Mr. Snyder's strong academic background and practice experience, I am quite impressed by a particular statement given by Mr. Snyder in response to the Judiciary Committee questionnaire. In the 22 years I have been privileged to serve in the Senate and numerous times I have sat at this bench introducing candidates, I have never seen a more profound statement than this one. Listen carefully, colleagues. When asked to discuss his view of ``judicial activism,'' Mr. Snyder referred to himself as a jurisprudential conservative. That is pretty good. I had never heard of the word before, but, anyway, it must be there, meaning he would decide cases properly in front of him without looking for causes and without reaching for issues not properly presented to the court. Now, that is the very essence of what we strive to do here is to find that type of individual. Mr. Snyder stated that he would not decide cases based on personal agenda, but would rather ``recognize his role as one of faithfully interpreting and implementing the Constitution and the law of the land.'' I am sure that the members of this committee will agree with me that Mr. Snyder's philosophy on the role of the judiciary in our domestic system of government is the appropriate one and the standard that we have sought for so many years. Mr. Snyder is obviously a very accomplished American. He is well qualified to serve as a judge on this very important court, and I am certain that he will in his position serve with honor, integrity, and distinction. I am pleased to add that bit of support. Thanks very much. Senator Specter. We are very pleased to have you here, Senator Warner. Senator Warner. I wonder if he might introduce his family who came with him for the record. Senator Specter. Please do. Mr. Snyder. Thank you, Mr. Chairman. I am very pleased to have here with me today my wife of 30 years, Susan Snyder, and we have two wonderful daughters, our daughter Carolyn Snyder who is a freshman at Amherst College and flew in today in the middle of her final exams to be here, our other---- Senator Biden. We are going to make it worthwhile for you, kiddo. [Laughter.] Mr. Snyder. Our other wonderful daughter is a graduate student and is in Wyoming right now where she has some teaching responsibilities and could not join us today. I am also very pleased to have here and to introduce to the panel my father, Henry Snyder, who is 91 years young and who has been a great inspiration to me throughout my life, as well as having here my sister, Charlotte Zuckman, who is there, and her husband, my brother-in-law, Harvey Zuckman is here, and their daughter and my niece, Jill Zuckman. Finally, I would like to introduce to the committee my secretary of almost 27 years, Linda Heimple who has been a tremendous help and inspiration to me as well. I am pleased to have many other friends and family here today. I will not take further time of the committee, but thank you, Mr. Chairman, and thank you very much, Senator Warner, for your gracious remarks and courtesy. Senator Specter. Senator Warner, before you go, you had made a comment about clerking for Judge Prettyman. Senator Warner. Yes. Senator Specter. And you also made a comment that your academic record was not quite as distinguished as Mr. Snyder's. Senator Warner. That is correct. Senator Specter. I will not ask you what your academic record was. Senator Biden. Do not ask me either. Senator Specter. I still will not ask you, but I will ask you a question to which I know the answer in accordance with the dictums for trial lawyers. Senator Warner. Which both of us here, I, Assistant U.S. Attorney, and you, the top---- Senator Specter. But I think people would be interested in hearing the short story as to how you got the clerkship for Judge Prettyman, notwithstanding your record was not as good as Mr. Snyder's. Senator Warner. I have never revealed that story publicly before. [Laughter.] Senator Specter. Well, you have a right to remain silent. Senator Warner. Well, very briefly, His Honor had never engaged his law clerk, anyone who was not a Law Review editor or stood one or two in his class. That, I had not done. I had my law school interrupted by a tour of duty in the Marines in Korea and, therefore, somewhat disjointed, but, nevertheless, I came back and the wonderful dean of the law school at that time, Dean Ribble, tried to discourage me in every way for seeking the position. But I finally made a deal with him. I said if you get me the appointment, I will get the job, and he got me the appointment and now I had to figure out how I got the job. My recollection, Judge Prettyman had been on the bench for 8 or 9 years at that time, and I took 2 months and memorized every opinion he had ever written. When I went in to see him, he inquired as to how I got there because I was not in the cut normally and there were nine other students out there in that top rank. I said, ``Your Honor, if I cannot answer any question you may ask about any decision you have ever written, I would not suggest you engaging me.'' He never blinked an eye, asked a series of questions, said, ``Excuse yourself and invite the next student.'' And in my office is a short letter dated 1953, two paragraphs. ``I am designating you as my law clerk for the year of 1953-54. Your salary is $3,100. You will report for duty on the 1st of September.'' That was the beginning of my public service career. I thank you. Senator Specter. Thank you, Senator Warner. Senator Smith. Senator Specter, could I just make a clarification to my friend from Delaware on his numbers, 30 seconds? Senator Specter. Senator Smith, you are entitled to whatever time you want. Senator Smith. Senator Biden, you said there were 90 vacancies. In fact, there are 80, and out of the 80, 36 do not have a nominee which means there are 44 vacancies not acted on. So I think that is a lot different than saying---- Senator Biden. Let me be precise. There are 80 vacancies, and there are 8 future vacancies that will come up within the next 6 weeks to 8 weeks. I predict there will be another 6 to 8 after that. There will be well over 90 before the year is over. I have been doing this too long. I assumed you knew that as well as I did, but my mistake. I am just saying what the vacancies are. Senator Smith. There is no nominee for 36 of those. In fairness, we ought to at least be fair. Senator Specter. I would like to acknowledge the presence here today of Thomas Klein of the distinguished law firm of Klein & Specter, who is the chairman of the Pennsylvania Nominating Panel for the Eastern District who goes through a merit bipartisan selection process. Tom, if you would stand, we would appreciate it, to be acknowledged. Mr. Snyder, if you step forward, we will take your nomination first for the Circuit Court. Would you raise your right hand. Do you solemnly swear that the testimony you will give before the Judiciary Committee of the United States Senate will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. Snyder. I do. Senator Specter. Welcome, Mr. Snyder. We would be pleased to hear any opening statement you might care to make before submitting to questions. TESTIMONY OF ALLEN R. SNYDER, OF MARYLAND, TO BE U.S. CIRCUIT COURT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT Mr. Snyder. Thank you, Mr. Chairman. I do not have any opening statement. I do want to thank the chairman and the committee for giving me the honor of being here for this hearing, and I stand ready to answer any questions that the committee may have. Senator Specter. Mr. Snyder, you had talked, as Senator Warner pointed out, about jurisprudential conservatism. How would you define jurisprudential conservatism? Mr. Snyder. Mr. Chairman, I think a jurisprudential conservative is a judge who decides the cases in front of him or her, does not reach out for issues that are not properly before them, decides those cases based upon the facts in the record in that case and based upon the law and precedent rather than trying to implement his or her own personal views or personal agenda. In my view, the role of a judge is to follow the law as it is laid down by the elected officials. Judges are not elected in our Federal system, and in my view, they do not have the right to implement their own views of public policy. The elected branches of Government are there to deal with public policy issues. A jurisprudentialconservative looks at precedent to follow those precedents and to follow the will of the people as expressed by the elected representatives. Senator Specter. Well, that answer comprehends, Mr. Snyder, enactments of Congress or statutory enactments. It does not encompass the Constitution. What about jurisprudential conservatism with respect to the Constitution? Mr. Snyder. I think that courts interpreting the Constitution essentially should approach the task in the same way that they look at statutory issues, and that is that they should first look at the plain language of the Constitution, and where there is any doubt as to what the Constitution means, I think they should then look to the intent of the framers of the Constitution. Obviously, a lower court judge must also look and must be bound by the precedence of the higher courts. Senator Specter. This committee had considerable inquiry into the doctrine of original intent in some of our confirmation hearings. Do you believe that the Supreme Court of the United States--now, this is not your court, but you might have a matter which is a matter of first impression--should be bound by the doctrine of original intent? You mentioned that in your answer. Mr. Snyder. Fundamentally, I believe that the court should look at the language of the Constitution and at the intent of the Framers, yes, sir, because I do not believe that judges should be reaching out for policy ideas even in the constitutional area that do not emanate from the Constitution. Since the Constitution is broadly phrased, much more broadly than most statutes, there are issues where to apply those phrases to present-day circumstances, one has to go beyond pure original intent. For example, in the First Amendment, we have to apply the First Amendment to radio, television, and the internet, and there are issues where the literal original intent simply would not provide you the answer, but I think the basic concept of what was intended by the constitutional Framers should be critical. Yes, sir. Senator Specter. Let's take that specific case, and perhaps as famous a case as there is in the Supreme Court lexicon, Brown v. Board of Education. There are two dimensions that I would appreciate your comments on. One is Brown v. Board of Education was controlled by Plessy v. Ferguson, where the Supreme Court of the United States had held before the turn of the 20th century that separate but equal satisfied the equal protection clause. Then, as a matter of original intent, the Supreme Court of the United States in 1954 looked at the intent of the Framers of the Fourteenth Amendment, the equal protection clause, due process clause. The balconies of the United States Senate were segregated when the Fourteenth Amendment, equal protection clause, was adopted or ratified later. What considerations were present? I am sure you agree with Brown v. Board of Education. May the record show a nod in the affirmative. Mr. Snyder. Yes, sir. Senator Specter. I do not want to assume too much here. What considerations would justify disregarding original intent where obviously the Congress had supported segregation and a 50-year-plus precedent for segregation? Mr. Snyder. Mr. Chairman, I think the court in Brown looked at the intent of the Fourteenth Amendment and the equal protection in a broader context that included, for example, the language of the Fourteenth Amendment which calls for the equal protection of the laws, and the court looked at the practical effects of segregation in the United States and determined as a matter of fact, as well as constitutional law, that separate but equal was not equal. They found, therefore, that the condition of segregation violated the basic intent of the Fourteenth Amendment for in fact providing equal protection of the laws to all our citizens. I assume that the court looked at the records of the adoption of the Fourteenth Amendment to try to determine what was in fact the broader intent in that amendment, and obviously they looked at the record in front of them which included extensive expert and other factual analysis of what was in fact the effect in this country and the effect on our citizens of segregation. The Supreme Court obviously has the luxury that lower courts do not, Mr. Chairman. They can overrule prior Supreme Court precedent and found that Plessy v. Ferguson was wrongly decided in their opinion. Senator Specter. Well, I take from your answer the key words of practical fact as being--would you say the practical facts were the critical issues which led appropriately to Brown v. Board of Education in disregarding the intent of the Congress and the ratifiers and the precedent? Mr. Snyder. Mr. Chairman, frankly, I am not familiar enough with the record that was in front of the Supreme Court in 1954 in terms, for example, of the historical record of the intent of the Framers of the Fourteenth Amendment. I do not know exactly what was in that record and exactly what the court reviewed. I do believe that all courts in looking at constitutional issues should look at the language of the Constitution which in this case called for the equal protection of the laws which is a fairly straightforward phrase, and they should look at the intent of the Framers and they should look to see whether on the record in front of them that constitutional protection is being met. Senator Specter. Mr. Snyder, if you had a question of first impression where you did not have the guidance of the Supreme Court of the United States, what methods would you employ in deciding such issues of first impression? Mr. Snyder. Well, in addition to looking obviously at the factual issues and the record in the case, I would look at the precedence in other courts or in analogous cases. Mr. Chairman, in my almost 30 years of litigating, it has been very rare that there has been a case that is truly completely one of first impression. All of us lawyers that it is a case of first impression when we don't like the precedents that are out there, and frequently there is no case directly in point, but as a lower-court judge, there are usually cases from the higher courts that, while not direct holdings that are precisely on point, do point the way doctrinally that the Supreme Court is asking the lower courts to follow. So there are analogous cases. There are cases that help a lower court to make a determination. There may be cases in other jurisdictions. I would look at those precedents as well as looking at the record and theindividual case. Senator Specter. Before yielding to Senator Biden and then to Senator Smith, I want to repeat to you a comment which was made by Senator Thurmond at the first nominating hearing that I attended in 1981, and this is for you, Mr. Snyder, Mr. Brady, Ms. McLaughlin, Judge Schiller, Judge Surrick, and Judge Tucker. Senator Thurmond asked the nominee, ``If confirmed, do you promise to be courteous?,'' translated to if confirmed, do you promise to be courteous. And I thought to myself, what an absurd question, what do they expect the nominee to say, no, not to be courteous? Be courteous even if you are not confirmed. The nominee said yes, and Senator Thurmond then said, ``The more power a person has, the more courteous the person should be,'' more power a person has, the more courteous the person should be. I have considered that the most profound statement I have heard in this room, not much competition perhaps in the last 20 years, but the most profound statement I have heard. I always repeat that to nominees, and many have come back to me and have said, ``I have thought about that,'' and there are, I think, a lot of occurrences. I consider myself a practicing lawyer, and have noted many, many times that once those robes are donned, there is an aura of a difference. It may be impatience. You may have some lawyers who are unresponsive, and I do not think you are going to have too many lawyers who are as astute as you are, certainly very few who will have your record. So I suggest that you think of Senator Thurmond if on any occasion you become short or quick or have the inclination not to be courteous. Senator Biden. Senator Biden. I concur with the notion of the profundity of the Senator's remarks. It really is. It is amazing. We know it is a lifetime appointment, and we often joke that someone we appoint to the court, prior to their appointment, they are accessible and they are friendly and they are actually grateful to the President for having appointed them. After they are appointed, they wonder what in the hell took so long, why wasn't I here all the time, and I guess I was born to be here. Not all, but some do, and I am confident from looking at your background that you do not fall in that category in any case. I just have two questions. One, why do you want to be a judge? Mr. Snyder. Senator, I have felt very privileged for about 28 years to be participating in our legal and judicial system as a lawyer and an officer of the court. I really am proud of our system and have been proud to be part of it. We have a legal system that I think is second to none in the world, a system where the will of the people and policy issues are decided by ballots rather than bullets, which is not the case in many countries around the world, and where disputes among people are generally decided in a civilized fashion in courtrooms where people can have some confidence that it is being decided in accordance with the law and based on impartial decisions and not based on power or prestige or the identity of the parties. I would be greatly honored to be a judge and to contribute further in the administration of justice in trying to give people the sense that coming into a courtroom is a place where they will be treated fairly, where the law will be followed, and I would like to contribute to that process. Senator Biden. With regard to the questions that Senator Specter had asked you about defining what you mean by your definition of being conservative, as I listened to what you had to say, basically what you are saying is those judgments on constitutional issues where the Supreme Court has spoken are above your pay grade. You have no choice, right? Mr. Snyder. Yes, sir, that is correct. Senator Biden. So your reading of stare decisis is that you are bound by the precedents that are on point of the Supreme Court decisions that you must look to. Is that correct? Mr. Snyder. That is absolutely legally correct, and I think morally correct, Senator. Senator Biden. But as a Supreme Court Justice, a Supreme Court Justice is not so bound. Mr. Snyder. Yes, sir. Senator Biden. I have no further questions. Senator Specter. Thank you very much, Senator Biden. Senator Smith. questioning by senator smith Senator Smith. Thank you, Senator Specter. Good afternoon, Mr. Snyder. Mr. Snyder. How are you, sir? Senator Smith. I have a question that goes to the issue of advise and consent, and it picks up on what Senator Biden said. It is not directed at any specific case that you had. It is more generic, and it would apply to the other nominees as well. Unfortunately, I have to leave at 4:00, and I will not get the opportunity to question others. You mentioned the Plessy v. Ferguson case. Obviously, I think as we would also agree with the Dred Scott decision which was never challenged, but the issue being in Dred Scott that an individual because he was black and was a slave, was property and therefore could not sue. I think we would all accept that that was wrong. However, had we been on the court then, we would have had to follow precedent until it was overturned. If you were on something under the Supreme Court level, at one of the lower-court levels, Plessy v. Ferguson, I think applies that way. There would be many differences with me on this, but I would also apply the Roe v. Wade case there. In any case, not going into that, but just on the issue of advise and consent, if you have a nominee where we are trying to legitimately determine whether or not a person would in fact be an activist judge who might make an outrageous decision if he or she were ever to get to the Supreme Court, it is true we do have another opportunity. If you are ever nominated to the Supreme Court after this, we get a chance to question you again, but sometimes the water is running pretty fast and it is hard to stop it at that point. You may be rushed into the nomination. In judicial activism, we have seen many epic battles. Senator Biden and Senator Specter have been involved in them. I remember the issue of Robert Bork, a conservative who was considered to be an activist judge basically because he answered questions before the hearing. If you answer the questions, you get in trouble on either side. So you do not answer the questions. It would just seem to me that without knowing that kind of information, and I am not saying youdo, but if a judge has an activist record on the bench in some of the decisions or an activist record prior to coming to the bench on some of his decisions, if we cannot ask you questions about that, how can we advise and consent in a way that would be meaningful to the process? I am speaking as a Senator. How do we do that? How can we advise and consent if we do not know what your views are on issues, not what your views are on a particular decision that might come up? You obviously cannot give us that, but your views on issues of importance? Mr. Snyder. Well, Senator, obviously I would not presume to advise the Senate on how to perform its constitutional duty, and the advise-and-consent duty is entrusted to the Senate in the Constitution with no provisos and no process of review. So it is obviously an important function, and I understand the question you are raising, Senator. My sense is from my limited experience is that this committee has quite an elaborate process for reviewing candidates' records, and there is an extensive review process as to what people have done over their entire career. There is a review by the ABA as well as by the committee's investigative staff that asks questions about demeanor, about public statements, writings, what people have said to their neighbors, and I think that the committee does collect a great deal of information that probably gives you a pretty good sense of what kind of people you have in front of you and what they have done over the last 20 or 30 years which hopefully will allow you to make the kinds of judgments that you are referring to, Senator. Senator Smith. But, generally, if I asked you today if separate but equal education was wrong, would you answer that question? Mr. Snyder. Well, as you know, Senator, one of the difficulties in this process--and I know you have looked at this question quite a bit and I understand the concern--the Senate is trying to get at all of the issues that you need to know in order to make the decision. The witnesses are trying their best to answer your questions, but obviously are constrained to some extent by the canons of judicial ethics which prohibit people from expressing personal points of view on issues that might come before them on the bench, and indeed, a judge who is doing his or her job properly would not in fact apply that personal point of view in ruling from the bench, whatever it was. They would apply the precedence in the case, but I do understand your concern. If you could get every candidate to lay out their point of view on every issue of public policy, it would probably give you a further rounded picture of the candidate. Unfortunately, it might make the candidate unable to serve on the bench if they laid that out. Senator Smith. A final question, Mr. Chairman. Again, I think you are answering it honestly, but, again, from my perspective, if we were back prior to Brown v. Board of Education and we had the Plessy v. Ferguson decision and you were now coming to us as a nominee on the Circuit Court, however the decision has been made, if I were to ask you back then, do you agree with that precedent, I assume you have to say according to judicial ethics--your point is you have to say I cannot answer that question because I might be on the Supreme Court. But my problem with that is, if that is the way you would answer it--and maybe you would not--my problem with that is, okay, when you get on the Supreme Court, I would like to know whether or not you view that precedent as being valid or not, and if you do not, then that might impact how I might want to vote on your nomination. Mr. Snyder. Senator, I do not think I would have answered your question precisely that way if I had been before this committee 50 years ago. I think I would have answered it the same way I am answering it today which is if I were nominated for a lower court, I would have said in answer to any question about whether I agree with Plessy v. Ferguson or any Supreme Court decision--I would have said if I were confirmed for this lower- court position, it would be my legal duty and I would in fact follow the Supreme Court precedent whether I liked it or not. I do think that the question you are raising, Senator, is a harder question with regard to a Supreme Court nominee who has the right and power to overrule a prior Supreme Court decision. I think that may suggest that the standards and the questions perhaps raise different issues for Supreme Court nominees. I am extremely honored to be here as a Circuit Court nominee, and I am trying my best to answer in that context, Senator. Senator Smith. I understand. I am not trying to pin you, but my frustration is that is the way the Supreme Court nominees answer as well. They do not answer it either. So we do not know when we put somebody on the court, when we approve somebody. We do not know what they are going to do, which means it makes the advise-and-consent process very difficult, if not irrelevant. That is the point. It has nothing to do with you personally. I want to make that clear. Thank you, Mr. Chairman. Senator Specter. Thank you very much. Senator Biden. May I---- Senator Specter. Senator Biden. Senator Biden. I want the record to show, and I want the press to observe this, I agree with the Senator from New Hampshire. That will ruin his reputation, but I agree with you. Senator Smith. Both of our reputations are gone. Senator Biden. I absolutely agree. He is dead right. I have had the misfortune or my students have had the misfortune of my teaching the advise and consent clause in the separation of powers course for the last 8 years in a law school in my State, and I have read, I think, everything that has been published and everything that has not been published on advise and consent. The Senator is absolutely correct. It is totally within his power, and, Judge--and I hope you will be a judge--you would not be--no bar association, no judicial organization could keep you from going to the bench if you answered every question specifically. The canons of ethics are no bar whatsoever for you answering any question asked as a Supreme Court Justice. Now, you have a right not to answer what you do not want to answer, and we have a right if you do not answer just to vote against you because we do not like your answer. That is how all of it gets resolved. So I think we would all be better served in the Senateby saying if they will not answer our questions, you just want to put them on notice at that time you are going to vote no. Senator Smith. I have done that a few times. Senator Biden. But, again, hopefully you will have that problem and have time to think about it before you come back. questioning by senator specter Senator Specter. One final question which comes to mind-- your questioning will be a little longer than the district court judges. You are going to a very, very important court. Circuit courts are important because they have really the final word absent review by the U.S. Supreme Court which is very rare, and the District of Columbia Circuit is especially important because you get the government cases. It is, I think, the most important of the circuits. Next to a Supreme Court nomination, your nomination is that important. When Chief Justice Rehnquist appeared before the committee, and you used to clerk for him, I had a very extensive dialog with him about the power of Congress to limit the jurisdiction of the court on constitutional issues. I ask you this question to test the doctrine of subordinate courts following Supreme Court. If the case came before you, Congress had taken away the jurisdiction of the Supreme Court to decide constitutional questions involving First Amendment, freedom of speech, and the case of Ex Parte McCardle decided shortly after the Civil War upheld the power of Congress to take away the jurisdiction of the Federal courts on habeas corpus, would you follow Ex Parte McCardle? Mr. Snyder. Well, Senator, I pause because I really do not feel that I am a scholar in that particular area. I actually--I remember taking Federal courts in law school, and I remember reading a lot of cases that dealt with the related issue. It seemed to me at the time to be a somewhat unclear area of the law, and it has not become clear in my mind in the last 30 years not having studied it further. If that issue did come before me, obviously what I would do first is to look at all the precedents from the Supreme Court. The Constitution, of course, does specifically give the Supreme Court certain specified jurisdiction and then talks about such inferior courts as the Congress shall establish. Senator Specter. Does the Constitution give the Supreme Court the authority to overrule acts of Congress? Mr. Snyder. Not explicitly in the Constitution. The Marbury v. Madison decision obviously was where that power first was declared. I am not trying to not answer your question, Senator. I think the kind of question---- Senator Specter. This is one question you cannot answer without having your confirmation in any jeopardy. Mr. Snyder. What I am saying is I am trying my best to honestly state that I do not know the answer without looking carefully at all the precedents which I just do not have in my mind, but if I did have a case raising that issue, I would look at the language of the Constitution. I would look at the precedence of the Supreme Court, and I would try to follow them. I am not sure I can answer the question any better than that sitting here today. Senator Specter. If you want to find Chief Judge Rehnquist's answer, check the record. Mr. Snyder. I am sure it was a good answer. Senator Specter. I will not tell you what it is. His answer to that question was a good answer, but his answer to the question as to whether Congress had the authority to take away the jurisdiction of the Supreme Court on Fourth Amendment issues was not quite so good, nor was his answer to the question as to why he would answer the questions to the First Amendment, but not the Fourth Amendment. Well, we have kept you a long time, but I think that you are heading for a very important court. While prediction is not my business generally, I think you will be confirmed, and we wish you the very best. Mr. Snyder. Thank you very much, Mr. Chairman. Senator Specter. I know your family is very proud of you, especially your 91-year-old father who is sitting beside you. If Senator Thurmond were here, I know he would say that young fellows like your father have a lot to be proud of. Mr. Snyder. Thank you, Mr. Chairman. Senator Specter. Thank you very much, Mr. Snyder. 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We will take now Mr. James J. Brady. Step forward, please. Mr. Brady, will you raise your right hand. Do you swear that the testimony you will give before this Judiciary Committee of the United States Senate will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. Brady. I do. TESTIMONY OF JAMES J. BRADY, OF LOUISIANA, TO BE U.S. DISTRICT COURT JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA Questioning by Senator Specter Senator Specter. Mr. Brady, if you are confirmed as a Federal judge, do you promise to be courteous? Mr. Brady. Yes, sir. I take Senator Thurmond's thoughts very seriously. Senator Specter. Mr. Brady, would you classify yourself as a judicial prudential activist? Mr. Brady. I would, you know, go along with what the previous panel member, Mr. Snyder, said and---- Senator Specter. Well, we did not ask him that question. Mr. Brady. I'm sorry? Senator Specter. We did not ask him whether he considered himself a jurisprudential activist. We took him up on jurisprudential conservative. Mr. Brady. Conservative. No, I'm not a jurisprudential activist. I believe in following precedent as set forth by the Supreme Court and by, in my instance, the Fifth Circuit Court of Appeals, and will do that if I am fortunate enough to be---- Senator Specter. When you face issues which have not yet been decided and you have a matter where there are no precedents really close enough to give you guidance, what factors would you consider in deciding such a case? Mr. Brady. Well, the statutes come before you with a presumption that they are constitutionally valid. I would look at the plain language of the statute, the Constitution. I would look for analogous precedents. I agree with some of the statements that were said here that very rarely are there cases that are actually of first impression, and if there are not any cases of law, I would try to, you know, determine what the Supreme Court would like to see happen in those instances or the Fifth Circuit, where--if I could determine where they were heading in other areas. Senator Specter. Are you familiar with the recent case argued in the Supreme Court of the United States to overturn Miranda and establish the standard as articulated by the Omnibus Crime Control Act of 1968 to judge a confession on the totality of the circumstances? Mr. Brady. I have seen news reports and articles of the arguments before the court in that area. Senator Specter. I believe the Court of Appeals for the Fourth Circuit found that was the prevailing--the appropriate standard. Assuming that they did, and I believe that they did, what would be the justification for the Court of Appeals doing that in the face of existing law of Miranda requiring specific warnings and waivers above and beyond the totality of the circumstances test? Mr. Brady. I don't know other than I believe they based that there was a statutory enactment that legislatively overruled the holding of Miranda, if I have my facts correct about that, and I may not, but they would, I think, look at that aspect of it and felt that there was a later, you know---- Senator Specter. But the Supreme Court of the United States had decided many cases upholding Miranda subsequent to the 1968 statute. Mr. Brady. Yes. If you are asking me would I follow the precedent of the Supreme Court, I would. I would---- Senator Specter. Would you have followed Miranda and not-- -- Mr. Brady. I would have followed Miranda, yes. Senator Specter. What is there in your own background, Mr. Brady, which you would cite as establishing your qualifications to be a Federal judge? Mr. Brady. Well, I think that in general that I have had experience in very many different jurisdictions, you know, Federal, State, appellate courts on both the State and Federal level. I have had a variety of cases throughout the years. I have done a variety of practice aspects. I have been plaintiff counsel. I have been a defense counsel. I have had, you know, a varied practice, and I think that is something that would help me be a good trial judge on the Federal level if I am confirmed. Senator Specter. I am going to ask you a question now which appears in the prepared questions by the committee. Please state in detail your best independent legal judgment, irrespective of existing judicial precedence, of the lawfulness under the equal protection clause of the Fourteenth 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. Brady. Well, most of those were answered, Mr. Chairman, by the Adarand case, and they provide for strict scrutiny, a very narrow focus on a compelling State interest, and that is the interpretation that the Supreme Court has on most of those cases and that is the precedent that I would follow. Senator Specter. Well, that is a very good answer. Do you read the slip opinions of the Supreme Court or the advance sheets, or how did you happen to know Adarand? Mr. Brady. I had seen some comments on it and had one occasion to look at it in relation to a matter that I have had, and then I have seen other materials on it. Senator Specter. Would you tell us what matter you had that brought the Adarand case to your attention? Mr. Brady. It was a discrimination case, employment discrimination case. Senator Specter. What would you do--and this is another question from the standard questions. What would you do if you believe the Supreme Court or the Court of Appeals had seriously erred in rendering a decision? Would you nevertheless apply that decision with your own best judgment of the merits? Take, for example, the Supreme Court's recent decision in City of Boerne v. Flores where the court struck down the Religious Freedom Restoration Act. Mr. Brady. I would follow the precedent of the court. Senator Specter. Senator Biden is otherwise engaged. So I will ask you his question. Why do you want to be a Federal judge? Mr. Brady. Well, I think--thank you, Mr. Chairman. I believe that public service is a very high calling. I also believe that the legal profession is a very high calling, and I think that this is the best way that I could serve both of those at this point. And I think that it is a very noble thing. If I am confirmed by the Senate, I think that I could best serve the people in my State in that capacity. Senator Specter. Do you know how much a Federal District judge makes? Mr. Brady. I think it is 130-some-odd thousand peryear. Senator Specter. Are you interested in what your salary would be? Mr. Brady. That has not been the overriding concern. Senator Specter. Are you interested in what your salary would be? Mr. Brady. Yes, yes. Senator Specter. But you did not check that. Mr. Brady. I did not. Senator Specter. You know Adarand, but you do not know your salary. Mr. Brady. I did not. Senator Specter. Do you know that Circuit judges make more than District judges? Mr. Brady. I did not know that. Senator Specter. Do you know that Circuit judges make more than Senators? Mr. Brady. I did not know that. Senator Specter. Mr. Snyder, did you know that? Mr. Snyder. Clearly inappropriate, Mr. Chairman. [Laughter.] Senator Specter. There would have been applause, Joe, on your coming back, but we asked everybody to exercise decorum. Mr. Chairman, how are you? I am for him. Thank you very much, Mr. Brady. That concludes your questioning. Mr. Brady. Thank you, Mr. Chairman. Senator Specter. We appreciate your coming today. Senator Biden. Now, there is a good lawyer. He got up real quick. I said I am for him, and he was not going to sit there and take any chances that I may change my mind. You did the right thing. He is going to make a fine judge. Senator Specter. I concur with Senator Biden on that, Mr. Brady. I think, again, without being in the prediction business, that you will be confirmed. Senator Biden reminds me to ask you to introduce your family, Mr. Brady. I should have done that at the outset. If you have family here and care to introduce anyone? Mr. Brady. I have my nephew, Kevin Brady, who lives in this area who is present with me. Senator Specter. OK, thank you very much. Senator Biden. I do have one request of the judge. I have a daughter who is a freshman at Tulane University, and I realize you are a little further up the road, but I just want to know can she call you if she has a problem. Because I got a lot of problems, my daughter, a northern girl down in New Orleans. It worries the hell out of me. I just want you to know that. Mr. Brady. Where did she go wrong? Senator Biden. She decided she did not want to go to either of her brothers' schools. So she headed South, but she is having a great time. New Orleans is--I like to think--I know that is not your hometown, but New Orleans is the only city in America out of America. It is the most fascinating city in the world, I think, but at any rate, it is nice to have you here, Judge. Thank you for bringing along your nephew. 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Judge Schiller, would you step forward, please. I take it, you know Senator Biden. Will you raise your right hand. Do you solemnly swear that the testimony you will give before this Judiciary Committee of the United States Senate will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Schiller. I do. Senator Specter. You may be seated, Mr. Schiller. Would you care to make an opening statement or just go direct to questions? TESTIMONY OF BERLE M. SCHILLER, OF PENNSYLVANIA, TO BE U.S. DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA Judge Schiller. I have no opening statement, but I would like to make reference to some people here, if I may. Senator Specter. Would you please introduce your guests. Judge Schiller. I have some representatives from the Legal Department of the Federal Transit Administration who worked with me when I was there. I have my cousin who is a senior---- Senator Specter. Would they stand so we can recognize them. Judge Schiller. I have my cousin, Mark Kreitman, who is a senior litigator at the Securities and Exchange Commission. I have the Federal Railroad Administrator, Jolene Molitoris who is a good friend. And my family, I have my son, Jonathan. Unfortunately, my other son, Joseph, and my daughters, Abigail and Maggie, could not make it. And my wife, Jo Ann. Senator Biden. Welcome to all. Questioning by Senator Specter Senator Specter. Thank you very much, Mr. Schiller. We welcome your family and all of your guests who have come here to join you. Mr. Schiller, how would you categorize yourself as a philosophical approach to judging? Judge Schiller. I always considered myself a moderate, and interestingly enough, I have been referred to as someone who was not blinded by political ideology when I served as a judge on the Superior Court so that---- Senator Specter. What role does political ideology have to play on the Superior Court of Pennsylvania? Judge Schiller. None, and that is why I was proud of that. Senator Specter. Are there moderates, conservatives, and liberals on the Superior Court of Pennsylvania? Judge Schiller. I guess it would depend on the issue, Senator. Sometimes someone could be a conservative on economic issues. Sometimes they could be a liberal on social issues. It really depends on the matter that is before the court and how someone else would characterize that. Senator Specter. What would views as a conservative or moderate or liberal have to do with the business of judging? Judge Schiller. It shouldn't on the Federal District Court level. On the Appellate Court level, we are sometimes called upon to make judgments on those kinds of issues where philosophy may come into it. Senator Specter. Give us an illustration of that kind of a judgment which you have had from your experience on the Pennsylvania Superior Court. Judge Schiller. There was a question that arose a couple of years ago regarding whether or not as a matter of public policy--if someone applied for worker's comp, whether or not an employer could fire them claiming that person was an at-will employee and, therefore, the public policy exception would not apply to him because of the countervailing policy of employee at will. Senator Specter. Of employees what? Judge Schiller. Employee at will which in Pennsylvania, as you know, Senator, says that an employer does not have to give a reason to fire somebody, and there are some exceptions, very limited, and one of them is the public policy exception. This case arose. I wrote a dissent claiming that since there already was legislative and constitutional authority for worker's comp in Pennsylvania that that was an expression of the legislature and public policy, and, therefore, it should override the employee at will. The Supreme Court took the case and reversed my court and adopted my dissent. Senator Specter. Well, in what respect would you categorize that based on philosophical grounds of moderate, liberal, or conservative? Judge Schiller. I don't think it has any designation there. I just decided on the law. I saw that the conflict between public policy and employee-at-will standards bumped into one another, and I made a judgment that one should prevail over the other. Senator Specter. Well, in common law, you can fire an at- will employee without any reason, but the cases have held that you cannot fire them for a bad reason, exercising First Amendment rights, for example. Judge Schiller, what in your background beyond the service you had as a Superior Court judge would you say especially qualifies you for a Federal judicial appointment? Judge Schiller. Thank you, Senator. I have had extensive background in litigation trying cases on all levels from the lowest court in magistrate's court all the way to the Supreme Court of Pennsylvania. I have tried cases in the Federal court. I have tried cases in about 10 different counties of Pennsylvania in various areas of the law. So that, I have had an extensive background in litigation, meeting with clients. I have also been involved in community activities and in public service. Prior to becoming a Superior Court judge, as you know, I was the chief counsel of the Federal Transit Administration. So that, public service has been a major part of my life. Senator Specter. Judge Schiller, do you think that the Pennsylvania legislature could take away the jurisdiction of the Pennsylvania Supreme Court to decide constitutional issues? Judge Schiller. That question, of course, never came up. I do believe in the separation of powers, and it would be an interesting constitutional crisis, I assume, if something like that happened. I don't know where it would go because the Constitution seems to lay out various powers to each--what is supposed to be co-equal branches of government, and I think that that would try to be avoided. The closest that happened in Pennsylvania a couple of years ago on reforming the court system--and ultimately there was a meeting and people were able to work it out because no one knew where that was going to go. So I have a real concern if one branch of government tried to usurp powers of another branch of government. I don't know what would happen. Senator Specter. Well, if you use the word ``usurp,'' you pretty well decided that, haven't you? Judge Schiller. Maybe that was a wrong word to use. Senator Specter. Does the legislature of Pennsylvania have the legal authority to--before the matter was put on the ballot for a constitutional change, did the Pennsylvania legislature have the legal authority to give the district attorney the right to demand a jury in a criminal case? Judge Schiller. I understand that that was a constitutional amendment that had to be proposed, and the population at large voted on it. So that, evidently, the legislature decided that that would have to be a special constitutional amendment rather than a statute. Senator Specter. That is why I asked the question before the constitutional amendment was proposed. Judge Schiller. I think they decided that they could not do it by legislation. Senator Specter. Where the defendant has a constitutional right to a jury trial, wouldn't there be a concomitant right in the Commonwealth absent the constitutional amendment and absent legislation to have a right to a jury trial as a party before the court? Judge Schiller. I don't know. I don't know whether there is any precedent for that. I just think that over the course of the 200 years, that issue, if it had been decided, I am not aware of it. Senator Specter. There was precedent. The Commonwealth had the right to a jury trial when I was district attorney, and I used it too often and the Supreme Court took the right away, which raised the issue. Judge Schiller. You have always been a catalyst of change. Senator Specter. Let the record show that Senator Biden thinks that is funny, unlike my reaction when it happened. Then the question came up about having legislation to give me back--give the District Attorney back the right to demand a jury trial, and it was finally resolved, as you know, by constitutional amendment, but I am still interested in your opinion as to whether you think the legislature could have reinstated the District Attorney's right to a jury trial. Judge Schiller. I don't--I don't know. I--that is a tough question, and I think that's why the legislation---- Senator Specter. We are not here to ask you easy questions, Judge Schiller. Judge Schiller. I can't--I have not thought that one through. Senator Specter. With respect to the imposition of the death penalty, do you have any legal or moral scruples which would inhibit or prevent you from proposing or upholding a death sentence in a criminal case? Judge Schiller. No, I do not. Senator Specter. Do you believe that 10-, 15-, or even 20- year delays between conviction of a capital offender and execution is too long? The International Court of Justice held that a 6-year delay was too long for the imposition of the death penalty in a European case. Do you think that a delay of 10, 15, or 20 years is too long to execute someone on a death penalty case? Judge Schiller. I don't think there should be a time limit on how long it should be before someone is executed, especially if that person is the one who has taken all the appeals and strung it out that long. Senator Specter. Senator Biden. Questioning by Senator Biden Senator Biden. Let me ask you about a different subject. Tell me about what pro bono work you have done in your career. Judge Schiller. If I could be a little flip about it, sometimes my cases started out with paying clients and they ended up pro bono. Those were not my best. I have worked with the Bar Association over the years. I was the first student delegate elected to the House of Delegates. I was also active with the Philadelphia Bar Association's Law Day Committee setting up seminars on public service for lawyers, and I served on the Disciplinary Board of the Supreme Court of Pennsylvania for 6 years which took about 30 hours a month reviewing files and cases of lawyers who ran afoul of the rules of professional conduct, for which, of course, you receive no remuneration. I have also been active in the community with education, and I was very involved with the mentally ill and mentally retarded, having set up a mental health center and serving as its president at one time. Senator Biden. Thank you. When Senator Specter asked you what qualified you to be a judge, one of the reasons why I think--and I have known you for a long time, almost 30 years--is not only your academic and legal background, but the fact that you have been involved in an awful lot of public-interest questions. I remember the first time--you will not remember--that you sought to get me involved outside of my State, in Philadelphia, was for mental health. I do not remember what the event was, but I remember you asking me to participate. I think that is an important component. I think it is an obligation of lawyers that is too often not met. It is not a legal requirement. I think it is an obligation that is too often not met. I will ask you the same question I asked the other witness. Why do you want to be on the Federal bench? Judge Schiller. I have always thought that public service is the highest calling you can have in a society. My training and background in law leads me inexorably towards something in public service and the law, and to me, there is no higher calling than becoming a judge. Senator Biden. On the Superior Court of Pennsylvania which is the Appellate Court, not the court of original jurisdiction---- Judge Schiller. That is correct. Senator Biden. In my State, the Superior Court is the court of general jurisdiction. On that court, that is obviously--for the record, that is a full-time judge. You are not still associated as a partner in any law firm? Judge Schiller. Oh, no. No. Senator Biden. So you have been on the Superior Court in the State of Pennsylvania since 1996? Judge Schiller. My term expired January of this year. Senator Biden. Now, is that an appointed or elected office? Judge Schiller. It is elected. However, I was appointed twice by Governor Ridge to fill successive vacancies that occurred on the court. Senator Biden. So you have never stood for that office? Judge Schiller. I did, and I lost. Senator Biden. And then you were appointed after or before? Judge Schiller. I was appointed in 1996, stood for election for the Pennsylvania Supreme Court and lost, and then Governor Ridge reappointed me to the Superior Court---- Senator Biden. To fill a vacancy. Judge Schiller [continuing]. To fill another vacancy, and I was defeated in 1999 for a full term, and my term expired in January of this year. Senator Biden. And have you enjoyed the work on the bench? That sounds like a silly question to ask since you sought to stay in the bench, but have you enjoyed your work in the bench? Judge Schiller. It is a wonderfully challenging exercise, intellectual exercise, as well as a terrific opportunity to help the administration of justice which is what I want to do. Senator Biden. You are going to be in a trial court, and you are in a very busy district. What is your attitude about appellate court versus a trial court in terms of your desire to serve on a court? Do you think you will find one more interesting than the other? Judge Schiller. I think they are both going to be very interesting and exciting in different ways. I was a trial lawyer, and I yearn to get back to that, not that I have had the experience of an appellate court. It gives me a different perspective. Senator Biden. Thank you very much, Mr. Schiller. I wish you luck on the bench, and I am hopeful that--the truth of the matter is, the reason why you are here and the others are here is because of the persistence of this man righthere. I want to make it clear. My comments about the relative treatment of nominees in a timely fashion between administrations was not in any way directed towards the chairman here this afternoon, but I wish you luck. I hope it meets your expectations. I have no doubt you will serve honorably, and I have no doubt you will serve well. Judge Schiller. Thank you, Senator. Senator Specter. Thank you very much, Judge Schiller, and I would concur with what Senator Biden said about your background and your capabilities, and again not in the prognostication business, I, too, am optimistic of your confirmation. Judge Schiller. Thank you very much for all your help and consideration. 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Judge Petrese Tucker, would you step forward, please. Judge Tucker, would you raise your right hand. Do you solemnly swear that the testimony you will give before this Judiciary Committee of the United States Senate will be the truth, the whole truth, and nothing but the truth, so help you God? Judge Tucker. I do. Senator Specter. You may be seated. I know you have your father here. Your daughter is here, and your husband is here. TESTIMONY OF HON. PETRESE B. TUCKER, OF PENNSYLVANIA, TO BE U. S. DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA Judge Tucker. Yes. Senator Specter. Would you introduce all of your guests, please. Judge Tucker. Yes. Thank you very much. I would like to introduce my father who is here with me, Albert Brown. Senator Biden. Welcome, Mr. Brown. You must be pretty proud today. Judge Tucker. And my two daughters, Leah and Lindsay Tucker. I also have with me a good personal friend who is presently the vice president of the school district of Philadelphia, Dorothy Sumner Rush. Also, I have two representatives from the Barristers Association in Philadelphia, Elizabeth Jackson and Ronald Harper. I would also like to mention that my husband is not here because he is presently incapacitated, having shattered his ankle about 2 weeks ago. So he is literally laid up with pins in his ankle and unable to be here, but I am sure he is with me here in spirit. Thank you for the opportunity. Questioning by Senator Specter Senator Specter. Judge Tucker, you have served on the Common Pleas Court in Philadelphia for some 12, 13 years. What experience have you had there which you think would--if any, which would particularly well qualify you for the Federal trial bench? Judge Tucker. Well, I've had the opportunity to sit in every division of the Court of Common Pleas in Philadelphia County. So that, I've handled civil, criminal, family cases. So I am very familiar with all kinds of cases. I have also had an opportunity to have administrative responsibilities while in the Common Pleas Court, and I think that my trial experience before the bench, while on the bench, and joined with the administrative responsibilities that I have had while sitting as an administrative judge presently in the Orphans Court would assist me in my duties and responsibilities on the Federal bench. Senator Specter. What would be an example of some of the most difficult legal issues you have faced on the Common Pleas Court, any opinions you have written on matters taken on appeal? Judge Tucker. Yes; well, one of the earlier cases that I had was a case where there was an issue as to freedom of religion and the rights of parents to raise their children in the manner in which they wanted. It involved a young girl who was a victim of sickle cell anemia and needed to be treated by blood transfusions. There was extensive litigation at my level as well as the Appellate Court, and the Appellate Court upheld my decision to have the child--have a guardian appointed for the child and to order blood transfusions for her. That was very early on in my career and perhaps one of the most notable cases where the issue was really an issue of well-established Federal right and how that conflicts with what the child needed. Senator Specter. Have you presided over a great many jury trials in your 13 years on the Common Pleas Court? Judge Tucker. I have. Most of my jury trials have been criminal jury trials. I have had some civil jury trials, but I was in the Criminal Division for 5 years, and during that time, I have had--I would say 60 to 70 percent of my cases were jury trials. Senator Specter. Had you ever tried a first-degree murder case? Judge Tucker. I have not. Senator Specter. Do you have any conscientious scruples about the imposition of the death penalty? Judge Tucker. I do not. Senator Specter. When you were an Assistant District Attorney, did you have occasion to try any first-degreemurder cases? Judge Tucker. I did not. I was in every unit but the homicide unit, and I spent most of my time doing sexual assault for both adults and child victims. Senator Specter. As an Assistant D.A., did you have occasion to try many jury cases? Judge Tucker. I did. Most of the cases that I did, especially the sexual assault cases, were jury trials. Senator Specter. Did you ever face a waiver where the defendant waived his right to a jury trial, where you thought there should have been a jury trial? Judge Tucker. There was none that I could think of at this time. Senator Specter. Did you ever feel restricted with the fact that the District Attorney of Philadelphia did not have the right to demand a jury trial? Judge Tucker. At that time, yes. Senator Specter. What were the circumstances? Judge Tucker. Well, I think that clearly--especially, I can only really speak for the judges on the State level and the city level--have certain reputations that certain judges are waiver judges and certain judges are jury judges. As a prosecutor, I was an advocate, and it was my duty and responsibility to make sure there was a fair trial, and that if the evidence was appropriate that there would be a conviction. Sometimes in certain kinds of cases, if the case is a waiver trial instead of a jury trial, that was not always the case, but I would think for the most part, it was not compromised in any way. Senator Specter. Did you ever have occasion to be the trial prosecutor in a case involving alleged political corruption? Judge Tucker. No. Senator Specter. Those were the cases which I have problems on waivers in the Philadelphia Court of Common Pleas. Senator Biden. Somehow that does not surprise me, Senator. Senator Specter. Well, you get the Inquirer, Joe, all about Philadelphia. Judge Tucker, in your view, is the proper rule of a Federal judge when interpreting a statute with the Constitution to accept the balance struck by conquerors of the people or to rebalance with your own views the competing moral, economic, and political considerations? Judge Tucker. If I was fortunate enough to be confirmed and I sat as a District Court judge, my personal views and social and moral views would not be what would lead me in making the decision. What would lead me in making the decision would be the precedent that has been set, and I would apply that precedent to the facts of the case that was in front of me at the time. Senator Specter. We have heard the term ``jurisprudential conservative'' used here today. How would you categorize yourself? Judge Tucker. I don't know that I could categorize myself anything other than saying that I would continue to be a fair and impartial judge as I have been for 13 years in the State bench. Senator Specter. If confirmed, do you promise to be courteous? Judge Tucker. Yes, sir. Senator Specter. Judge Schiller, I do not think I asked you that question. If confirmed, do you promise to be courteous? Judge Schiller. Courteous and civil. Senator Specter. Judge Tucker, what is your view as to how the scourge of drugs in our criminal trial courts should be handled? You have had experience in the system as D.A., although you do not necessarily try them. As a Common Pleas judge, did you ever try drug cases? Judge Tucker. I did, yes, many, hundreds of drug cases. Senator Specter. What is your view on sentencing of, say, contrasting an addict, a user, to street-corner seller to a better organized seller or a more organized seller? There is no better organized seller, but a more organized seller. Judge Tucker. As a judge in the Criminal Division of the Court of Common Pleas, I handled hundreds of drug cases, and the issue usually was not whether or not one was a user or one was a seller. By the time the matter got to the major trial division, which is where I sat, the issue was whether or not the facts were appropriate and that person should be convicted of the crime. As you know, we have in Pennsylvania mandatory minimums and sentencing guidelines, and I was bound and did apply those guidelines and the mandatory minimums to the appropriate cases. Senator Specter. You could deviate, though, to some extent from those guidelines, could you not? Judge Tucker. Yes. The guidelines in Pennsylvania are advisory. They are not mandatory, as they are in the Federal level. However, the mandatory minimums are mandatory, and if one is convicted of possession a certain amount, you receive a mandatory sentence. Senator Specter. You always had some flexibility, or at least on some occasions, didn't you, to find the defendant guilty of a lesser amount? Judge Tucker. I may have had the flexibility, but I don't recall that there was any case in which that was done. If one is convicted and the fact is you had the X-amount of drugs, that is what you are convicted of. Senator Specter. This is the standard question. Give me your best independent legal judgment, irrespective of existing judicial precedent on the lawfulness under the equal protection clause of the Fourteenth Amendment and the 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 governmental contracts. Judge Tucker. My understanding of the state of the law presently, while there is some flux as it relates to gender issues, as it relates to race issues and other issues, there is a certain level of scrutiny, strict scrutiny that as a trial judge, I would have to review. It was a long time since I reviewed strict scrutiny, compelling interest in least- restrictive standard, but in reading the cases and comparing the cases and contrasting the cases, the development is such that at this point, any race-based Government action, strict scrutiny applies, and the least restrictive means of obtaining a compelling interest is a standard that I would use as a U.S. District Court judge. Senator Specter. Strict scrutiny and the compelling governmental interest? Judge Tucker. Yes, sir. Senator Specter. Do you exclude gender cases? Judge Tucker. Well, I am excluding them only because there is some disagreement at this point as to what level of scrutiny---- Senator Specter. What is your understanding of the law as to gender cases? Judge Tucker. Some gender cases have said strict scrutiny, while others have said intermediate scrutiny. Senator Specter. How would you distinguish strict scrutiny from intermediate scrutiny? Judge Tucker. When it is necessary? Senator Specter. Yes. Judge Tucker. I believe at this point that the appellate courts have not yet decided which it is, and that I am not familiar with what circuit, where we stand, but I would have to review and see which was the appropriate or the most appropriate level of scrutiny that would apply to the case that was in front of me. Senator Specter. Do you think the Judiciary Committee is subject to the rules of strict scrutiny on having sufficient numbers of women on the Federal bench? Judge Tucker. I would have no opinion on that. Senator Specter. I do. We have only one woman, as I believe, on the Federal bench today, Judge Anita Brody, and---- Judge Tucker. Yes, sir. Senator Specter (continuing). Judge Norma Shapiro took senior status, and at one time, Judge Shapiro complained to me that there were more people named Kelly on the Federal court than there were women on the Federal court. Senator Biden. Questioning by Senator Biden Senator Biden. Mr. Chairman, you know, people wonder why you and I are friends sometimes. One of the reasons why I have such respect for you is your certain core principles, and one of them is that unlike many in both political parties, the actions you have taken are consistent with the assertions, verbal assertions, you have made. You have tried before to make sure that an African American was on the District Court, and you insisted; in effect, again, that happened. I happen to think that is important, probably more important than Judge Tucker thinks it is, and I mean that sincerely. Judge Tucker may feel some sense of obligation to take the appointment to be on the court. I appointed someone recently to the Circuit Court, an African American from Delaware who was reluctant to take the appointment, but felt an obligation to take it. I do think it matters. I think it matters that women, and women and men of color, are on the court. I think there is an obligation to it in some broad way to reflect society, assuming they are qualified, and the way you have answered the questions, you are not only obviously very bright, Judge, you are very cool. One of the things that we sometimes forget up here is sometimes you may forget as a judge. We are sitting up here in this elevated platform asking you questions that you are required to answer, and you know your fate depends upon how you answer them. It is not easy to be sitting where you are sitting, and I applaud your answers. You are absolutely correct about strict scrutiny versus intermediate scrutiny. There is no case that I can think of where the Supreme Court has made a judgment that--well, there is an exception. Strict scrutiny applies to gender. So I just think that the way you conduct yourself is illustrative of, I suspect, how you are on the bench, and that gives me some reason for a sense of confidence about you going on the bench, but I do want to state that I admire--this guy is tenacious. Whatever he sees that he thinks is right, he persists, even sometimes when he is wrong, but one of the things he has insisted upon is that that court reflect more appropriately the makeup of the community. That is not always the case. So he would not like this, but that is something he and the President have in common, and I think it is very, very, very, very important. I was going to ask you when I read your biographical information about pro bono work. I assume that as a judge, you do not conclude that that means that your pro bono work in the community ends. I hope it does not. Judge Tucker. I do not, Senator. Senator Biden. Because with this job, I think, quite frankly--presumptuous of me to say this--goes an additional obligation, and quite frankly, it is going to be harder for you because I think you have not a legal, not a political, but I think probably in the sense a personal obligation to let not only your daughters, but all the daughters who do not have mothers in your situation know that anything is possible; that women on the bench should be as normal a process as men on the bench, and African Americans and Hispanic Americans and all others, Asian Americans, should be as commonplace as anything else. We have not reached that point yet. You are clearly no trailblazer in the sense that this is a first-ever, but I think it is important. I think it is important, and I think, and I predict, you will find yourself under a little more scrutiny than most will find themselves under. People will look up to you, and people will look to mistakes that they will want to wonder whether you will make. I thought your answer, quite frankly, about what kind of judge you will be is the exact right answer. You could have said it another way, it is nobody's business, but that is a little like asking us to categorize ourselves what we are because no single categorization fits. The way you have conducted yourself on the bench for the last 13 years in a court that is more like a free-for-all--I mean, you are--you try more cases in the Pennsylvania Court of Common Pleas, criminal felonies, in one year than the entire Federal system tries in one year. You try over 26,000 cases, as last time I looked which was about 18 months ago. So I think your work on that court qualifies you very well, assuming one has the reputation you have, and you have a stellar reputation on that court. It qualifies you very well to sit on the Federal bench. As a matter of fact, I think the Federal bench can use, as it always can, a dose of real reality of someone who has been there and seen the kind of caseload that you all have had, compared to what you will have on the Federal bench. You are going to think you have been on vacation when you go on the Federal bench, and they work like hell. They work like hell, but nothing like the kinds of life-and-death decisions you have to make on just simple things like continuances. They are tough decisions. I have a friend of mine who says the most difficult decision a public official makes is deciding what not to do, not what to do, and so I think you are going to find your tenure on the court to be, quite frankly, more orderly and less pressure than you found on the Court of Common Pleas. I am not in any way belittling the significance of the Federal court. I think it is the single greatest bulwark to our freedoms that exist in all three branches of government in my view, but having said that, I do not have any questions for you because I know of your reputation. I am delighted that the President chose to pick you, and I am delighted that Arlen Specter chose to champion your nomination. I think it is good for the court. I think it is good for the community. I think it is good for Philadelphia. I think it is good for the State, and I look forward to you having many successful years on the bench dispensing justice from a perspective that other people may not have, both as a consequence of you being an African American, as a consequence of you having sat 13 years on a trial court in the fourth-largest city in the United States of America. So I do not know whether he has any further questions of you. I have none except to wish you luck, and thank you for being willing to take the job. Judge Tucker. Thank you, Senator. Senator Biden. Thank you for being willing to take the job. Judge Tucker. Thank you very much for your kind remarks. Thank you. 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It has been a long time since I have been able to be chairman of this committee. So you are before he gets back--I was about to excuse you. And I am going to excuse myself because I have a 5:00 appointment. I do not mean that as a reflection on the remaining two nominees, both of whom I have read their records extensively and I support wholeheartedly, but, again, thank you, Mr. Chairman, for your tenacity in pushing. I would like to ask unanimous consent, Mr. Chairman, that I put a statement by Senator Leahy in the record and also a letter that we received from--if I can find it--I beg your pardon here. I cannot find it. There is a second item. [The prepared statement of Senator Leahy follows:] Prepared Statement of Hon. Patrick J. 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 6 nominees all year and held the equivalent of only 2 previous hearings all year on judicial nominations. There is growing frustration around the country with this partisan stall. The vacancies on the courts of appeals around the country are particularly acute. Vacancies on the courts of appeals are continuing to rob these courts of more than 12 percent of their authorized active strength, as they have for the last several years. The Fourth Circuit, the Fifth Circuit, the Sixth Circuit, the Ninth Circuit, the Tenth Circuit and the District of Columbia Circuit continue to have multiple vacancies. President Clinton nominated Judge James Wynn to one of the longstanding vacancies on the Fourth Circuit. If confirmed, Judge Wynn would be the first African-American judge appointed to the Fourth Circuit in its history. We will not be hearing from Judge Wynn today despite the strong support of Senator Edwards. The Fifth Circuit continues to labor under a circuit emergency declared last year by Chief Judge Carolyn Dineen King. The Senate continues to pass over the two outstanding nominees for vacancies on that court. One of those well qualified nominees is Enrique Moreno. Mr. Moreno received the ABA's highest rating and was rated as one of the three top trial lawyers in El Paso by Texas judges. He is the son of Mexican-American immigrants and the second Hispanic President Clinton has nominated, without Senate action, to this Fifth Circuit vacancy over the last several years. The Sixth Circuit has vacancies in 25 percent of its authorized judgeships. The Senate has three nominations pending to that court. Among them are Helene White, whose nomination has been pending for more than 3 years, since January 1997, and Kathleen McCree Lewis, one of the outstanding minority nominees on whom I have been seeking action for many months. This year I received a copy of a letter from the former Chief Judge of the Sixth Circuit, in which Judge Merritt noted: [W]e have almost 200 death penalty cases that will be facing us before the end of next year. I presently have six pending before me right now and many more in the pipeline. Although the death cases are very time consuming (the records often run to 5000 pages), we are under very short deadlines imposed by Congress for acting on these cases. Under present circumstances, we will be unable to meet these deadlines. Unlike the Supreme Court, we have no discretionary jurisdiction and must hear every case. The Founding Fathers certainly intended that the Senate ``advise'' as to judicial nominations, i.e., consider, debate and vote up or down. They surely did not intend that the Senate, for partisan or fractional reasons, would remain silent and simply refuse to give any advice or consider and vote at all, thereby leaving the courts in limbo, understaffed and unable properly to carry out their responsibilities for years. Fortunately, there is included today at least one nominee to one of our appellate courts, Allen Snyder, one of the two pending nominees to the Court of Appeals for the District of Columbia Circuit. Unfortunately, we are not hearing from Elena Kagen, the nominee for the other vacancy on that court. The Senate should consider the effect of its perpetuation of longstanding judicial vacancies on drug cases. The Criminal Justice Oversight Subcommittee held a hearing this week on the drug smuggling problem in the Caribbean, with particular attention to the activity in Puerto Rico. The Commander of the Coast Guard Atlantic Area testified that his ``primary counterdrug focus . . . for the upcoming year is on Puerto Rico, where the smuggling infrastructure is well developed, entrenched, and historically successful'' with ``one-quarter of all cocaine destined for the United States . . . being shipped via the 110- mile long island of Puerto Rico.'' Yet the District Court vacancy in Puerto Rico has been perpetuated since June 1994, almost 6 years ago. In the meantime, the time from filing to disposition for criminal felony cases continues to increase-- now to almost twice as long as it was in 1994--and criminal felony filings jumped almost 70 percent last year alone. This district now has more criminal filings than any court in its circuit. By far the greatest number of criminal cases in Puerto Rico are drug cases, more than 40 percent of all its federal criminal cases. The President has nominated qualified people to fill the vacancy for years but to no avail. I hope that as the Committee considers its reaction to yesterday's hearing on drug trafficking activity through Puerto Rico, it will at long last act to fill the vacancy in the district court there. The vacancies in the District Courts in Pennsylvania are astounding, especially in light of the efforts that the Senior Senator from Pennsylvania has made over the years to be responsive to judicial vacancies. I commend Senator Specter for his efforts in working to fill these vacancies. Ten of the 80 current federal court vacancies are in Pennsylvania. These include vacancies that arose years ago. Lynette Norton's nomination has been pending since April 1998, for over two years. Judge Legrome Davis' nomination has been pending since July 1998. The Senate has seven qualified nominations currently pending before it for these Pennsylvania vacancies. Unfortunately, only four of them are being included in the Committee's hearing today. I am disappointed that all of the Pennsylvania nominees have not been accorded a hearing. This year we will again be facing 100 vacancies. Already we have seen 87 vacancies and have so far responded with the confirmation of only 7 judges. By this time in 1992, the Senate had confirmed 25 judges and the Committee had held 6 confirmation hearings for judicial nominees. By this date in 1988, the Senate had confirmed 21 judges and the Committee had held 7 hearings. By this time in 1998, the Senate had confirmed 17 judges and the Committee had held 5 hearings. This year we remain leagues behind any responsible pace. The Senate continues to fail in its responsibility to the American people and the federal courts to take action on judicial nominations. This stall has been evident since 1996, with brief bursts of activity when the spotlight of public attention is focused on this shameful record of obstruction and partisanship. I have challenged the Judiciary Committee and the full Senate to return to the pace they met in 1998 when we held 13 confirmation hearings and confirmed 65 judges. That approximates the pace in 1992, when a Democratic majority in the Senate acted to confirm 66 judges during President Bush's final year in office. There is myth that judges are not traditionally confirmed in Presidential election years. That is not true. Recall that 64 judges were confirmed in 1980, 44 in 1984, 42 in 1988 when a Democratic majority in the Senate confirmed 42 judges nominated by President Reagan and, as I have noted, 66 in 1992 when a Democratic majority in the Senate confirmed 66 judges nominated by President Bush. Our federal judiciary cannot afford another unproductive election- year session like 1996 when a Republican majority in the Senate confirmed only 17 judges. Since then we have had years of slower and slower confirmations and heavy backlogs in many federal courts. 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 Senate takes another vacation. Senator Specter. We will take it, Senator Biden, whenever you find it. Senator Biden. Here is the letter. It is a letter from Allyson Schwartz of the State of Pennsylvania. Senator Specter. Without objection, they will be made a part of the record. [The letter follows:] Senate of Pennsylvania Harrisburg, PA, May 10, 2000. Senator Joseph Biden, Senate Russell Building, Washington, DC. Dear Senator Biden: I am writing in support of the nominations Judge Petrese B. Tucker, Berle M. Schiller, and Mary A. McLaughlin, to the federal bench. I have the pleasure to personally know each of these candidates. Each one has the intellect and temperament to serve with distinction on the federal bench. I applaud the action of the Judiciary Committee in moving these excellent nominees forward. Thank you for your consideration. Sincerely, Allyson Y. Schwartz. Judge Tucker. May I be excused, Mr. Chairman? Senator Specter. No, I do not think so. I think I have some more questions for you, Judge Tucker. [Laughter.] Thank you very much for joining us, and as with the other nominees, we are optimistic. I might say for the record that I am really sorry you will not be joining Judge Frederica Messiah Jackson on the Federal bench. I think she would have made a fine Federal judge. She was not treated properly by this committee. She had questions put to her on cases. She walked in and had prepared answers to some 50 cases, and she got 25 new cases. I was sitting here and my colleague, Senator DeWine, had faxes from the Philadelphia District Attorney's Office on new information. It was not a proud day for the U.S. Senate as to what happened to Judge Frederica Messiah Jackson, but stay tuned. Judge Tucker. Thank you. Senator Specter. I am confident you will be confirmed as judge. Judge Tucker. Thank you, Mr. Chairman. Senator Specter. Thank you. Judge R. Barclay Surrick, would you step forward, please. Judge Surrick, would you raise your right hand. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth before this Judiciary Committee of the U.S. Senate, so help you God? Judge Surrick. I do. Senator Specter. Judge Surrick, are there any in the audience whom you would care to introduce? TESTIMONY OF HON. R. BARCLAY SURRICK, OF PENNSYLVANIA, TO BE U.S. DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA Judge Surrick. Yes, there are, Senator Specter. There is a number of my family and friends here I would like to introduce. My wife, Pat, is with my, my daughter, Maryann, who is going to graduate from Penn Law School in about a week, she is here with my, her friend Dan Garodnick. Dan is graduating from Penn Law School in a week, also. My daughter, Kelly, who will be starting at Penn Law School in August, her friend, Jeff Edwards, who works at Dechert, Price & Rhoads, my brother, Jack, who lives over in Annapolis, his wife, Betsy, and Kelly's friend, Lisa Volpe. Did I miss anyone? I hope not. Senator Specter. Well, you are all very welcome here. Judge, be seated. If you care to make an opening statement, you are welcome to. Our general practice is to just go to Q&A. Judge Surrick. Yes, indeed. I appreciate the fact that I have been invited for this hearing, and I do not have any opening statement. QUESTIONING BY SENATOR SPECTER Senator Specter. Judge Surrick, why with 22 years of experience on the Common Pleas Court in Delaware County in that beautiful community and beautiful county do you want to travel into the City of Philadelphia to sit on the Federal bench? Judge Surrick. Well, Senator, I have enjoyed being on the bench in Delaware County for the last 23 years. It has been a very exciting, very interesting experience. I think it would be a tremendous honor to be able to sit on the Federal District Court in Philadelphia. For the last 6 or 7 years, I have been handling probably almost exclusively complex litigation for our court, asbestos mass tort litigation, the diet drug litigation, and I think that that experience, I have enjoyed, also. I think that I would get additional opportunity to do that kind of work on the Federal bench. So I think it would just be a tremendous honor. Senator Specter. What kinds of complex litigation have you had which would be applicable as an experience basis for the Federal District Court? Judge Surrick. Well, I have handled--for our court, I was the only judge who handled the asbestos litigation for the Delaware County Court. We determined that one judge would be assigned to handle that litigation, and it was me. And over a period of about 4 or 5 years, I was able to take care of a tremendous backlog. Senator Specter. That is more a matter of case management as opposed to complicated legal issues, though. Judge Surrick. Well, in some respects, that is certainly true, Senator, but there is a number of complicated issues in the asbestos litigation. I have also handled some toxic tort cases. I have a case at the present time involving methylbromide poisoning which involves some 50 defendants. So that kind of litigation that I have been dealing with for the last few years, I think, would give me good experience for the---- Senator Specter. Have you had occasion to try first-degree murder cases, Judge Surrick? Judge Surrick. I have tried first-degree murder cases. I tried one first-degree murder case with capital implications, but I have tried first-degree murder cases. Senator Specter. Have you ever had the responsibility to impose the death penalty after a jury returned a verdict of guilty of murder in the first degree and the death penalty? Judge Surrick. I have never had the opportunity to impose the death penalty. Senator Specter. Would you have any conscientious scruples about doing so? Judge Surrick. No, none. Senator Specter. You have heard a fair amount of talk today about jurisprudential conservatism, judicial activism. Give us your judicial philosophy about the appropriate role of a judge with respect to those considerations. Judge Surrick. Well, I think that a judge's job is simply to take the law as it is given to the judge by either the legislature or the appellate courts and to apply the law. I do not think it is the job of the judge to go on follies of their own based upon their own perception of what the law should be. So I guess to that extent, I would be--I guess as Mr. Snyder said earlier, jurisprudentially conservative. Is that the term is used? Senator Specter. Jurisprudential. Judge Surrick. Jurisprudentially conservative, yes. Senator Specter. Are you aware of the Supreme Court decisions in Adarand and the court's earlier decision in Richmond v. Crawson? Judge Surrick. I am aware of the Adarand case. I can't say that I've ever come into contact with the matter in my court that required me to use it. I know of its existence. I know generally what it involved. Senator Specter. What is your independent legal judgment of the lawfulness under the equal protection clause and the Federal civil rights law of the use of race-, gender-, or national-based preferences in such areas as employment decisions, hiring, promotion, or layoffs, college admissions and scholarship awards, and the awarding of Government contracts? Judge Surrick. Senator Specter, I think the present state of the law on that issue is that any race-based policy is subject to strict scrutiny and must satisfy a compelling State interest. It must be very restrictively circumscribed. Senator Specter. Have you in your capacity as a Common Pleas judge had any discrimination cases before you? Judge Surrick. No, I haven't. I have never had that kind of case in my inventory. Senator Specter. Could you give us an estimate of how many cases you have presided over where there were jury trials? Judge Surrick. Thousands. In 23 years, Senator Specter, I have handled--I have been a trial judge for almost that entire 23 years. I have handled both civil and criminal trials, and every week that we go into court and try cases. So I have never sat down and tried to figure out what the count was, but it is many, many cases. Senator Specter. The drug problem is a major problem facing most State and Federal judges. Have you had extensive experience in the handling of drugs cases, trials, and sentencing? Judge Surrick. I have had a great deal of experience when I was sitting in criminal court handling drug matters, yes, indeed. Senator Specter. How do you approach the sentencing issue of the users versus sellers? Judge Surrick. Well, we do have sentencing guidelines in Pennsylvania, and we have mandatory minimum sentencing in Pennsylvania for drug offenses depending on the facts of the case. And my sentencing has generally been to follow the sentencing guidelines, and certainly, if it is a mandatory minimum, that is what is imposed. Senator Specter. Sometimes a judge will make a fact-finding of a lesser amount in order to avoid the strictures and mandates of mandatory sentences. Not with you necessarily, but have you ever known that to be the case? Judge Surrick. I have never known any judge to do that. I have never had a judge tell me that they did that. I certainly do not approve of that kind of an approach to judging. I think the facts are the facts. You deal with them. And the law is the law, and you apply the facts to the law. Senator Specter. When you face a case of first impression, Judge Surrick, without any precedence or guiding close cases, what standards do you apply in trying to reach a decision on constitutional issues? Judge Surrick. Well, on constitutional issues, I think when you face a case of first impression, initially if you are looking at a constitutional matter or a statutory matter, you would have to look at the Constitution, the wording of the Constitution. You would have to review the facts of the situation to see how they fit into the plain language of the Constitution. If you are not sure once you look at the language exactly what should have been done, there is some ambiguity in your mind in any event, I think that your next step would be to try to take a look at the history, legislative history or constitutional history to determine just exactly what was meant by that provision. I would say, Senator, that in my experience in 23 years, you very infrequently run into matters of first impression, at least in the Common Pleas court. Senator Specter. Just Surrick, have you ever had a litigant, a lawyer before you who did not follow your instructions and tempt you to violate Senator Thurmond's maxim of always being courteous, ever in your 22-plus years? Judge Surrick. I think, Senator Specter, certainly if I look back over 22 or 23 years, I have undoubtedly run into an attorney or two along the way who has, I guess, pushed it to the limit. It doesn't change my view of my job as a judge. Senator Specter. I am not saying you have ever been discourteous, but have you ever been tempted to be discourteous? Judge Surrick. Well, I am human. You may be tempted, but you don't move forward with that temptation. Senator Specter. Well, you are going to be a Federal judge, Judge Surrick, and you have had a lot of experience and you are going to be wearing those robes. Keep Strom Thurmond's admonition in mind. Of all the rules I know, that is number one. Judge Surrick. Sounds like a good rule, Senator. Senator Specter. OK; again, I am confident of your confirmation, and I thank you for joining us today. Judge Surrick. Thank you. 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Ms. Mary McLaughlin, will you step forward, please. Would you raise your right hand. Do you solemnly swear that the testimony you will give before this Senate Judiciary Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Ms. McLaughlin. I do. Senator Specter. Ms. McLaughlin, do you have anyone with you whom you would care to introduce? TESTIMONY OF MARY A. McLAUGHLIN, OF PENNSYLVANIA, TO BE U.S. DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA Ms. McLaughlin. Yes, I do, Mr. Chairman. Thank you very much. I would like to introduce them perhaps in three groups. First, my family. I have with me three of my four sisters, Joan, Kay, and Lori, and Lori's brother--excuse me--husband, my brother-in-law, Robert McDonald. Senator Specter. Joan, Kay, and Lori. I only see two women standing. Ms. McLaughlin. Stand up. Senator Specter. And your brother-in-law? Ms. McLaughlin. Yes. I also have with me two of my partners and friends from Dechert, Price & Rhoads, Steve Feirson and Jennifer Clarke. Senator Specter. Welcome, welcome. Ms. McLaughlin. And finally, two of my very dear friends, Mary Woodford and Donna Franchetti. There they are. Questioning by Senator Specter Senator Specter. How will your partners at Dechert, Price & Rhoads handle their timesheets today, Mr. Feirson? How will you handle that? Ms. McLaughlin, have you ever been discourteous? Ms. McLaughlin. Oh, perhaps on occasion, Senator, butI certainly take your admonition and believe absolutely that courtesy and respect for everyone who comes into the courtroom is critical for a judge. You know, as you think back to the very best judges you have been before, they have been people who have been at all times courteous and respectful of everyone before them. Senator Specter. Do you promise to follow Senator Thurmond's admonition to be courteous at all times? Ms. McLaughlin. I certainly do. Senator Specter. You served with distinction as counsel to the Senate Judiciary Committee on Terrorism, investigating the incident Ruby Ridge. How would you contrast that assignment with the assignment of being a Federal judge? Ms. McLaughlin. Well, I think that when I had the privilege of being counsel to the Senate Subcommittee that did Ruby Ridge, what we were doing there, as, of course, Mr. Chairman, you know better than anyone, was trying to discover the facts of what happened. I suppose to that extent, trial judges, if they are the trier of fact, will do that, and then to evaluate and give guidance to the law enforcement agencies, make some judgments as to whether or not they had acted properly or not. A trial judge, of course, does no such thing. I mean, a trial judge's job is simply to take the case before her, decide it on the basis of the law from above. In my case, if I would be so honored as to be confirmed, that would be the Third Circuit in the Supreme Court. So you are not in any way doing legislating, and, of course, in Ruby Ridge, what the subcommittee had to do was evaluate the situation and try to determine whether or not there were certain decisions to be made legislatively perhaps or in the committee's oversight capacity that was required. Senator Specter. Ms. McLaughlin, you heard the characterizations of jurisprudential conservative and activism. How would you articulate your own philosophy in approaching the responsibilities of a Federal judge? Ms. McLaughlin. Well, certainly, Mr. Chairman, I would not approach them in any way as a judicial activist. I think--I may be repeating myself, but I think what a trial judge needs to do is simply decide the case before her and not to reach out, decide issues that are not presented, and to do that by paying very close respect, attention, and following precedent, whether that be Third Circuit, Supreme Court, or following the statute at issue. Senator Specter. Are you aware of the Supreme Court decision in both Adarand v. Pena and Richmond v. Crowson? Ms. McLaughlin. I'm generally aware of Crowson, Mr. Chairman. I don't think I have actually read that. I have read and am familiar with Adarand v. Pena, yes. Senator Specter. What is your best legal judgment of the lawfulness under the equal protection clause and Federal civil rights law of the use of race-, gender-, or national origin- based preferences on hiring, promotion, layoffs? Ms. McLaughlin. Well, certainly with respect to race and national origin, I think the Supreme Court made it clear in Adarand that what a judge, if a judge is evaluating such a classification would have to do is to apply strict scrutiny, meaning that there would have to be a compelling governmental interest to justify the classification, and that it would have to be tailored. The statute or program at issue would have to be tailored very narrowly to meet that compelling governmental interest. With respect to gender, my understanding is similar to what Judge Tucker's is that the Supreme Court at the moment has used an intermediate scrutiny test. Senator Specter. What is there in your background as a practicing lawyer which you think would especially qualify you for a Federal judgeship? Ms. McLaughlin. Mr. Chairman, I think the breadth of my experience is a very positive factor in that regard. I had the privilege of being an Assistant U.S. Attorney right here in the District of Columbia for 3\1/2\ years. Senator Specter. How many cases did you try, roughly, when you were an assistant U.S. attorney? Ms. McLaughlin. Fifty, Mr. Chairman. Senator Specter. Fifty? Ms. McLaughlin. Yes. Senator Specter. How many of those were jury trials? Ms. McLaughlin. They were all jury trials. Here in the District of Columbia under that system, there is not a waiver system that there is in Philadelphia, for example. So they were all jury trials. Senator Specter. And what kinds of cases did you try? Ms. McLaughlin. Mr. Chairman, because in D.C., as, of course, I know you know, the U.S. Attorney's Office does both the serious, what we would call State crimes, as well as Federal. A lot of my crimes were on the Superior Court--my trials were on the Superior Court side, a lot of drug cases, armed robberies. Senator Specter. Did you ever try a murder case? Ms. McLaughlin. I did not. No, Mr. Chairman. Senator Specter. Do you have any conscientious scruple against the imposition of the death penalty in a proper case? Ms. McLaughlin. None at all. Senator Specter. Do you think there is any outside limit as to constitutional process for keeping a person in detention after the imposition of the death penalty and the time of execution? Ms. McLaughlin. I know of none, Mr. Chairman. Senator Specter. So, if that issue came before you in a writ of habeas corpus, what would your response be? Ms. McLaughlin. Well, Mr. Chairman, what I would have to do is really look at precedent. When I said I know of none, I mean I am not fully familiar with all the precedent in the area. Obviously, I would look to what the Third Circuit and Supreme Court have said in regard to that and follow that. Senator Specter. What have your experiences been in the civil trial law and private practice? Ms. McLaughlin. I have done civil trial for about 17 years both at Arnold & Porter and now, of course, for the last 14 years at Dechert, Price & Rhoads, mainly large corporate cases, securities, anti-trust, takeover, general commercial cases. Senator Specter. Did any of those involve jury cases? Ms. McLaughlin. Yes. Senator Specter. How many? Ms. McLaughlin. Actual jury trials, Mr. Chairman, that I have had? Senator Specter. Yes. Ms. McLaughlin. I have had one jury trial since I have been back at Dechert in private practice. I have had many arbitrations. Senator Specter. What kind of a case was that? Ms. McLaughlin. It was a breach-of-contract case. I have had many arbitrations. Senator Specter. How long did the case last? Ms. McLaughlin. A week. Senator Specter. There was a verdict? Ms. McLaughlin. Yes. Senator Specter. Did you win? Ms. McLaughlin. Sort of. Senator Specter. It is more important to compete than to have the experience of winning, but I did not want to keep everybody in suspense, although the crowd has dwindled substantially. You have had the great misfortune, Ms. McLaughlin, of being last. So that, your questioning is much more limited without Senator Biden and Senator Smith, but that is just one of the vicissitudes you will have to put up with. Ms. McLaughlin. I will not complain, Mr. Chairman. Senator Specter. I did not think you were. You were mentioning arbitrations. Those are trials as well, presentation of witnesses, putting on witnesses, evidence. Ms. McLaughlin. And a lot of injunction hearings. A lot of my practice, because I have done a lot of takeover situations, have been long and involved injunction hearings. Senator Specter. Do you know how much a Federal District judge earns? Ms. McLaughlin. I think the newspaper said $141,000. Senator Specter. Do you believe everything you read in the newspaper? Ms. McLaughlin. Absolutely not, Mr. Chairman. Senator Specter. Do you know what the retirement benefits are of a Federal judge? Ms. McLaughlin. I believe, Mr. Chairman, you told all of us on Friday that it was---- Senator Specter. So do you remember? This is only Wednesday. Ms. McLaughlin. That it is the same as the $141,000. I thought that is what you said, that it was the same as the regular salary. Senator Specter. Retirement is the same as your pay. That is correct. The judge's pay is tied to the Congress pay, and on one occasion, the congressional pay was changed by an act of Congress before midnight on September 30th. And the bill went down to President Ford then, who signed it, putting the pay level back at the same spot, and the judges sued in Federal court claiming that they could not have their pay reduced because their pay was in effect from midnight on September 30th until 9:00 a.m.on October 1st when the President signed the order eliminating the pay increase. Number one, do you know how that case was decided? Ms. McLaughlin. I can sort of make a good guess. Senator Specter. Go ahead. Ms. McLaughlin. Again, Mr. Chairman, in fairness, you did tell me that, also. Senator Specter. It looks like I have talked---- Ms. McLaughlin. I'm sorry, Mr. Chairman. But it was--it was overturned. In other words---- Senator Specter. The pay was overturned? Ms. McLaughlin. It was held that it was too late to make the change. I believe that was the result. Senator Specter. It had been in effect for 9 hours---- Ms. McLaughlin. That's right. Senator Specter[continuing]. And, therefore, the Constitution prohibited reducing the rate of pay. Ms. McLaughlin. I think that's what you told us. Senator Specter. That's what I told you, and that's what the court did. Do you think that was a proper decision or judicial activism or conflict of self-interest? Ms. McLaughlin. Senator, not knowing the precedent, I would hesitate to---- Senator Specter. There was on precedent. The case of first impression. Ms. McLaughlin. Not having heard the arguments and read the briefs, I would be reluctant to enter into that. Senator Specter. That is what Justice Scalia said most of the time when we asked him questions. Well, thank you very much, Ms. McLaughlin. I am optimistic with your nomination, as with others, that you will be confirmed. 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Senator Kohl has asked that his statement be placed in the record commending you for the work you did with Ruby Ridge. He was the Ranking Democrat and noted your very considerable intellectual and legal talents and judicial temperament. So that will be made a part of the record. [The prepared statement of Senator Kohl follows:] Prepared Statement of Hon. Herbert Kohl, a U.S. Senator From the State of Wisconsin I am pleased that we are holding this judicial nominations hearing, and, in particular, that we are considering the nomination of Mary McLaughlin to the U.S. District Court for the Eastern District of Pennsylvania. We all know Ms. McLaughlin from her superior work as Special Counsel for our Terrorism Subcommittee during the Ruby Ridge investigation. During that process, Ms. McLaughlin demonstrated precisely the qualities required of a federal judge--she is intelligent, fair-minded, tough, possesses a judicial temperament, and is deeply committed to the cause of justice--in sum, extraordinarily capable of handling the responsibilities of this position. She widely deserves the strong support she has obtained from both sides of the aisle, within the Committee and in the Senate as a whole. I want to commend the Administration and Senators Specter and Santorum for supporting her nomination and urge my colleagues to swiftly confirm her to this position. Senator Specter. That concludes the hearing. Ms. McLaughlin. Thank you, Mr. Chairman. [Whereupon, at 5:19 p.m., the committee was adjourned.] Questions and Answers ---------- Responses of Allen R. Snyder 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. 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. I believe a lower court judge is legally and ethically required to follow binding Supreme Court precedent, regardless of his or her personal views. I would do so in all cases. 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. 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. Question 5. [a] Do you believe that 10, 15, or even 20 year delays between conviction of a capital offender and execution is too long? [b] 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. a. Yes. b. Yes. 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 interpreting and applying both statutes and constitutional provisions, judges should be determining the intent of the drafters/framers regarding the meaning of the provisions in question, and applying that intent to the facts of the particular case. In doing so, judges should look at the plain language of the statute/ constitutional provision and, if it is ambiguous, at the legislative history. In the case of lower court judges, they should look at higher court precedent that is binding on them, and apply it. In the event there is no binding precedent, but there are analogous precedents that provide relevant guides, lower court judges should try to fit their decisions into the framework of those cases. These sources and methods of decision-making are most consistent with Article III judicial power, as they recognize that under our constitutional system judges are not elected and have no proper role in setting policy, but should defer to the other branches in that regard. The role of judges is to apply the legislative/constitutional provisions in an impartial and reasoned way to the facts before them. 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 consistutional 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. I believe that following the text of the Constitution and assessing and applying the Framers' intent to the facts and circumstances before the court is the proper role of the courts. I do not agree that the ``community's interpretation'' of constitutional provisions is a proper consideration, as suggested by the second approach listed in this question. Regarding the third approach, the Constitution provides for a method of amendment. If that is done, then courts should interpret and apply the constitutional provisions as amended. 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 there were a binding precedent (from the same Circuit or the Supreme Court) on the constitutionality of a statute, I would follow that precedent. If there were no binding precedent, I would look to analogous precedents from the Circuit or the Supreme Court and attempt to fit this case into a logical framework of those cases. If neither the Circuit nor the Supreme Court had decided a case of any relevance, I would look to precedents of other courts for useful guidance. In addition, absent any binding precedent, I would look at the plain language of the constitutional text, or if it were ambiguous, at the intent of the Framers as determined by its ``legislative history'' (materials like the Constitutional Convention debates and the Federalist Papers), and determine whether the statute violated the Constitutional provision, recognizing that all legislative enactments come to the courts with a presumption of 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, the Court held that a Connecticut statute making it a crime for any person to use any drug or article to prevent conception violated a constitutional right of privacy. The Court indicated that the sources of that right are ``penumbras, formed by emanations'' from several provisions of the Bill of Rights and that the ``right of privacy (is) older than the Bill of Rights.'' In Alden, the Court held that the powers delegated to Congress under Article I of the Constitution do not include the power to subject non-consenting states to private suits for damages in state courts. The source of that holding was not the Eleventh Amendment, but rather a ``residuary and inviolable sovereignty'' of the states, which the Court held was consistent withthe history and intent of the Framers of the original Constitution. Both decisions have been criticized by some because they strike down legislative enactments, absent any particular constitutional text that the Court found required that result. 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 held that certain provisions of the Agricultural Adjustment Act were constitutional because authorized by a broad reading of Congress' powers under the Commerce Clause. In Lopez, the Court held that provisions of the Gun-Free School Zones Act were unconstitutional because there were insufficient Congressional findings and legislative history to demonstrate that the subject of the Act was within Congress' power under Commerce Clause. The Lopez the decision would appear to place a greater burden on Congress to justify its action under the Commerce Clause, and appear to call for a larger judicial role in reviewing Congressional enactments under that standard. To the extent that the federal power under the Commerce Clause is constrained by Lopez, there would be a broader area of state governmental discretion to act without federal preemption of the field. 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 Constitutional makes clear that the federal government is one of enumerated powers, and that all powers not delegated to the federal government are reserved for the states and the people. The Supreme Court has interpreted this concept of federalism to mean that American citizens must look to their state government and state judges to protect certain rights, while the federal government and federal judges are limited to actions within the spheres set forth in the Constitution for federal law. In Lopez, as discussed above, the Court set forth a standard for review of Congressional determinations that a matter is within the Constitution's Commerce Clause, potentially limiting to some extent the sphere of federal government authority and correspondingly increasing the sphere of allowable state government authority. In Printz, the Court held unconstitutional certain provisions the Brady Act, which commanded that the chief law enforcement officer of each local jurisdiction conduct certain background checks regarding handgun purchases. The Court held that such a federal statutory requirement imposed on state officials violated principles of state sovereignty, thus further delineating the distinction between the federal government's power and authority, and state governments' power and authority. In Alden, the Court held that Congress could not subject a state to private suits for damages in state court without its consent, further limiting Congressional power that might interfere with state sovereignty. In Baker v. Carr, the Court held that there is federal court jurisdiction under federal civil rights statutes to review allegations that a state apportionment plan violates the Equal Protection Clause. This opinion opened the way for much greater federal review of state apportionment issues and, to that extent, increased the power of the federal government, as opposed to the state governments, with regard to apportionment issues. Finally, in Shaw v. Reno, the Court held that allegations of racial gerrymandering can state a valid claim under the Equal Protection Clause, even where allegedly done to benefit a minority group. While focusing on a very different type of state action, Shaw v. Reno, to some extent, takes Baker v. Carr a further step in the direction of federal court review and state apportionment issues. 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. Question 13. Would it be appropriate for a court to hold unconstitutional a statute which existed before and after the ratification of a constitutional amendment, based on an interpretation of that amendment which creates an implied right conflicting with the preexisting statute? Answer 13. The existence of a statute both before and after adoption of a constitutional amendment may be relevant to determining the intent of the Framers of that amendment. In deciding such a case in the absence of binding precedent, I would look first at the plain language of the constitutional provision. If the language were ambiguous, a court should look at the Framers' intent. In deciding whether the constitutional amendment should be construed to have been intended to strike down the statute, it might be relevant to know whether the statute had been subject to judicial review prior to the constitutional amendment or whether that statute otherwise was a focus of the Framers of the amendment (either positively or negatively). ______ Responses of Allen R. Snyder 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. I believe that is entirely within the discretion of the Senators reviewing the nominee. I assume the Senators would, individually and collectively, make a judgment, among other factors, on whether the nominee had a legitimate basis for declining to answer the question. 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 fully candidates answer pertinent questions about consitutional issues, the more useful it is to the Senate in fulfilling its constitutional prerogative of advice and consent. 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 it is to obtain additional information from the candidates that may be helpful to the Senators in fulfilling their constitutional prerogative of advice and consent. Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer 4. No, I believe there are no constitutional or other limits on what a Senator can ask (subject only to any rules or rulings from the full Judiciary Committee or the Senate). There are, however, certain types of questions which the Code of Judicial Conduct would indicate nominees should decline to answer. Question 5. 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 5. No. Question 6. 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 6. It is extremely difficult for me to answer a hypothetical question regarding how I would have ruled if I were on the Supreme Court at a different time, when the prior precedents were different from today, at least without reviewing the briefs and record in the particular case and knowing all the precedents that were controlling then, as opposed to now. Nevertheless, I firmly believe that it is (and was) the duty of judges to give statutes a presumption of constitutionality and to interpret the Constitution based on the plain language of the text or, given ambiguity, based on the intent of its framers. Question 7. 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 7. That decision has been effectively overruled by the Thirteenth and Fourteenth Amendments to the Constitution and has no effect today. Question 8. 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 8. Yes. Question 9. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 9. It is extremely difficult for me to answer a hypothetical question regarding how I would have ruled if I were on the Supreme Court at a different time, when the prior precedents were different from today, at least without reviewing the briefs and record in the particular case and knowing all the precedents that were controlling then, as opposed tonow. Nevertheless, I firmly believe that it is (and was) the duty of judges to give statutes a presumption of constitutionality and to interpret the Constitution based on the plain language of the text or, given ambiguity, based on the intent of its framers. Question 10. 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 10. That precedent was overruled by the Supreme Court in Brown v. Board of Education, and has no effect today. Question 11. 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 11. It is extremely difficult for me to answer a hypothetical question regarding how I would have ruled if I were on the Supreme Court at a different time, when the prior precedents were different from today, at least without reviewing the briefs and record in the particular case and knowing all the precedents that were controlling then, as opposed to now. Nevertheless, I firmly believe that it is (and was) the duty of judges to give statutes a presumption of constitutionality and to interpret the Constitution based on the plain language of the text or, given ambiguity, based on the intent of its framers. Question 12. 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 12. That precedent of the Supreme Court has not been overruled and thus should be followed by lower courts today. Question 13. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer 13. It is extremely difficult for me to answer a hypothetical question regarding how I would have ruled if I were on the Supreme Court at a different time, when the prior precedents were different from today, at least without reviewing the briefs and record in particular case and knowing all the precedents that were controlling then, as opposed to now. Nevertheless, I firmly believe that it is (and was) the duty of judges to give statutes a presumption of constitutionality and to interpret the Constitution based on the plain language of the text or, given ambiguity, based on the intent of is framers. Question 14. In Rew v. Wade, 410 U.S. 113 (1973), the court held that a Texas statute which prescribed 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 14. I believe that lower court judges are required to follow the holdings and reasoning of the Supreme Court's binding precedents in cases that come before them. Thus, unless the Supreme Court overruled or modified this precedent and its subsequent ruling in Casey (or there were a constitutional amendment), I would be obligated to follow the majority's holding, and not the reasoning of the dissent, were I to be confirmed for a lower court judgeship. Question 15. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 15. I have no personal view on abortion that would interfere in anyway with my following the binding precedents of the Supreme Court, whatever they may be at the time, to a case that might come before me if I were confirmed. Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 16. I have no personal view on the death penalty that would interfere in any way with my following the binding precedents of the Supreme Court, whatever they may be at the time, to a case that might come before me if I were to be confirmed. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 17. I have no personal view on issues relating to the right to bear arms that would interfere in any way with my following the binding precedents of the Supreme Court, whatever they may be at the time, to a case that might come before me if I were to be confirmed. Question 18. 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 18. My understanding of the Supreme Court's decision in Casey is that it held, among other things, that states could prohibit, with certain exceptions, abortions of viable fetuses, and could regulate abortion prior to the point of viability so long as they didn't unduly interfere with the rights recognized by the Court in Casey. Question 19. 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 19. I have no personal view on the question of whether an unborn child should be viewed as a human being (whether that question is viewed as a biological, moral, or legal question) that would interfere in any way with my following the binding precedents of the Supreme Court, whatever they may be at the time, to a case that might come before me if I were to be confirmed. Question 20. Do you believe that the death penalty is Constitutional? Answer 20. Yes, the Supreme Court has so held. Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 21. I believe that Supreme Court Justices should overrule their prior precedents rarely, as there are substantial institutional and jurisprudential benefits of stare decisis. In the area of statutory construction, for example, even if a prior ruling may have been in error, the legislature is free to correct that error by further legislative action, and society benefits from a degree of stability and predictability in the law. The Supreme Court has ruled in cases like Agostini v. Felton. that stare decisis principles are at their weakest when the Court considers prior constitutional rulings, since, absent a constitutional amendment, they can not be overturned by anyone but the Justices. In that area, the Court has held that it should overrule a prior precedent when intervening precedents demonstrate clearly that the prior precedent erroneously interpreted the language and intent of the constitutional provision involved. Question 22. 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 22. I believe that judges should not consider legislative intent when the plain language of the statute is clear. When the language is ambiguous, it is proper to consider legislative history, although I do believe great care must be taken not to assume that an isolated statement from an individual legislator is necessarily the intent of the legislative body as a whole. Question 23. You argued before the Supreme Court in Missouri v. Jenkins, 5155 U.S. 1139, and the Supreme Court adopted your position that Kansas City School Board could constitutionally raise local taxes without a vote to remedy segregation in its schools. Why do you think that it is constitutional for judges to order tax hikes without a vote of a deliberative body? Answer 23. In this case, I took the position for a paying client in the District Court that the courts should not adopt a tax increase proposal made by another party in the case, but rather should adopt an alternative approach to funding the remedy the court had found was constitutionally required. The District Court did not accept my client's position. In the Court of Appeals, my client took the position that the District Court had the discretion to adopt the position it took, but we suggested that it consider the alternative approach that we had urged in the District Court instead. In a 2-1 vote, the Court of Appeals rejected our alternative approach and ruled that its was not unconstitutional for a federal judge to enjoin a state law that had prevented the elected school board from adopting a tax increase that the elected officials wished to adopt, where such an injunction is necessary to fund a constitutionally required remedy. In the SupremeCourt, I argued on behalf of my client that this lower court decision was within the discretion of the court and thus constitutionally allowable, and the Court adopted that position. The Supreme Court has made clear in Jenkins and cases like Monell v. New York City, 436 U.S. 658 (1978), that court orders affecting taxes should be used only as a last resort when absolutely necessary to enforce a constitutional requirement. Question 24. Your firm, Hogan & Hartson represented Parents, Families and Friends of Lesbians and Gays as a pro bono client in a case against the Christian Broadcasting Network. What was your involvement in the case and what was the ultimate resolution of this manner? Answer 24. My role in this matter was to consult within my firm on the First Amendment/defamation issues and advise the attorney principally handling the matter. In that matter, the Christian Broadcasting Network (CBN) sent a letter to a number of broadcast stations threatening to initiate defamation proceedings against them because of television advertisements the stations had run or were considering running, which PFLAG had sponsored and which showed actual videotape of statements made by CBN officials (and others), juxtaposed with images which CBN felt made the accurate quotations defamatory. On behalf of PFLAG, my firm wrote a letter to CBN reviewing the law of defamation and arguing that it was not defamatory to show accurate quotations from CBN officials in an advertisement on an issue of public policy. The letter also indicated that PFLAG had contractual rights with the broadcast stations to have these advertisements aired, and it viewed the threat of litigation by CBN to be unwarranted and an interference with those rights. The ultimate outcome of the matter is that there was no litigation by either party. I believe that some stations chose to air the ad and others did not. Question 25. Netscape is one of your clients and I would assume that you would recuse yourself from any cases involving Microsoft. Would that be an accurate assumption? Answer 25. I would certainly recuse myself from any cases that had any significant relationship to the work I handled that was adverse to Microsoft. If there were a completely unrelated lawsuit (e.g., a slip- and-fall-case) against Microsoft by a third party whom I had never represented, I do not believe that my prior representation of Netscape on antitrust issues would in fact affect my impartiality in such a hypothetical case. I would have to review the Code of Judicial Conduct, and possibly consult with ethics authorities to determine whether recusal would be warranted in such a case. Question: 26. In 1999, in an interview with the Morning Star of Wilmington, North Carolina, you argued that officials had failed to achieve racial balance in the school system. You were quoted as saying, ``Many tough decisions were not made because they would have been politically unpopular. Since 1979, there has been a steady and substantial worsening of the problem.'' Please explain how the problem of racial imbalance in the schools is ``worsening.'' Answer 26. This quotation is from a statement I made in open court on behalf of the Charlotte-Mecklenburg School District (CMS), which my firm represented in the Swann litigation, which went to trial in April 1999. In that case, CMS, which was under a continuing court order to desegregate its schools, took the position that data presented and analyzed by CMS and other parties' expert witnesses showed that the level of desegregation in CMS schools had actually worsened since 1979, during a period when there had been no active court supervision. Thus, CMS argued that the court should not declare the district unitary but should continue (and modify) certain court orders until the vestiges of desegregation had been eliminated to the extent practicable. ______ Responses of Allen R. Synder to Questions From Senator Thurmond Question 1. Mr. Snyder, in Missouri v. Jenkins, the Supreme Court concluded that it was not unconstitutional for a federal judge to order a tax increase to remedy a constitutional violation. You argued this case on behalf of the respondents and in opposition to the state. (A) Do you believe this conclusion was dicta in the opinion? (B) Do you believe that the Constitution permits judges to order tax increases? Answer 1. In this case, I took the position for a paying client in the District Court that the court should not adopt a tax increase proposal made by another party in the case, but rather should adopt an alternative approach to funding the remedy the court had found was constitutionally required. The District Court did not accept my client's position. In the Court of Appeals my client took the position that the District Court had the discretion to adopt the position it took, but we suggested that it consider the alternative approach that we had urged in the District Court instead. In a 2-1 vote the Court of Appeals rejected our alternative approach and ruled that it was not unconstitutional for a federal judge to enjoin a state law that had prevented the elected school board from adopting a tax increase that it wished to adopt, where such an injunction is necessary to fund a constitutionally required remedy. In the Supreme Court, I argued on behalf of my client that this lower court decision was within the discretion of the court and thus constitutionally allowable, and the Court adopted that position is as described above. (A) I believe the holding of the opinion is as described above. I do not believe the Supreme Court held or suggested in dicta that federal courts have the power generally to order tax increases. (B). The holding of the Supreme Court does not appear to permit judges to order tax increases but rather, in exceptional circumstances where there are no other alternative ways to implement a constitutionally required remedy, to enjoin a state law that otherwise prevents the implementation of a constitutionally required remedy. Question 2. Have you been involved in other cases, either before or since Missouri v. Jenkins, where the party or parties you represented encouraged the court to impose a tax increase as a potential remedy for a constitutional violation? If so, please explain. Answer 2. No, I have not been involved in such a case. Question 3. Assuming a federal judge has the constitutional power to raise taxes, do you believe it is wise and appropriate in some circumstances for a judge to raise taxes to remedy a constitutional violation? Answer 3. I find it extremely difficult to imagine such circumstances. Question 4. Assuming a Federal judge has the constitutional power to raise taxes, do you believe that Congress has the power to limit the jurisdiction of the lower Federal courts to prevent them from having the authority to order a tax increase? Answer 4. I have never researched that issue and do not know the answer to this question. If I were ever to face such an issue as a judge, I would review carefully the relevant constitutional provisions and all the prior precedents that bear on Congressional withdrawal or modification of court jurisdiction over particular types of substantive rulings, and would follow any binding precedents on this point. Question 5. Are there practical and/or legal limits to the nature and extent of relief a judge may order in a given case? Answer 5. Yes. There are well recognized and important limitations on the equitable powers of a Federal judge in fashioning relief, including due deference to the powers of the other branches of government and separate sovereigns, and consideration of the practical ability of the judge, rather than elected officials to implement complex remedies. Question 6. We frequently hear the argument that the courts act in response to various social problems because the legislatures failed to act on important issues. What is your view of courts acting in this manner? Answer 6. Courts do not have the responsibility or authority, and it is not their role in our form of government, to ``solve'' social problems, but rather it is the role of courts to hear and decide only the cases that come before them, applying applicable Constitutional provisions, statutes, and legal precedents to the facts of the case. Question 7. Do you have personal objections to the death penalty that would cause you to be reluctant to impose or uphold a death sentence? Answer 7. No. Question 8. What is your view of mandatory minimum sentences, and would you have any reluctance to impose or uphold them as a Federal judge? Answer 8. Mandatory minimum criminal sentences reflect determinations by the elected branches of government as to the proper sentencing in particular cases. Where the elected branches have made such determinations, as a judge I would have no reluctance to impose or uphold such sentences. Question 9. 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 9. The Federal Sentencing Guidelines reflect a legislative balance between the need for consistency in judicial sentencing and the need for flexibility to consider the circumstances of each case. I would have no reluctance to uphold application of those Guidelines. __________ Responses of Berle M. Schiller 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 should not reach out to solve social problems and should not act when a legislature has failed to take action. The Constitution confines the jurisdiction and authority of the Federal courts to actual ``cases and controversies'' properly before them. District courts are bound by decisions of the Supreme Court and the Court of Appeals for their circuit. 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 that would cause me to be unable 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. Congress has determined when mandatory minimum criminal sentences are appropriate and courts are obligated to apply those laws. I would have no reluctance to impose or uphold the imposition of mandatory minimum criminal sentences if I am fortunate enough to be confirmed 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 have been upheld by the courts, and I will apply them to the criminal cases that are tried before me. ______ Responses of Berle M. Schiller 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 all precedents of the Supreme Court and Third Circuit Court of Appeals. Question 2. How would you rule if 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 (521 U.S. 507 (1997) where the Court struck down the Religious Freedom Restoration Act. Answer 2. I would follow the precedent of the Supreme Court and Third Circuit even if I felt that they had erred. 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. I am committed to following the precedents of the Supreme Court and Third Circuit Court of Appeals on equal protection issues, regardless of any personal feelings I may have. 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 have no legal or moral beliefs which inhibit or prevent me from imposing or upholding a death sentence in any criminal case that might come before me. 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. The long delays between conviction of a capital offender and execution can be very frustrating to the justice system. Once Congress or a state legislature makes a policy decision that capital punishment is appropriate, the duty of a Federal judge is to carry out the law fairly and expeditiously. Question 6. What authorities may a federal judge 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. A federal judge should first look to the plain language of the statute or constitutional provision and then to the Supreme Court precedent and then the Circuit Court. If neither answers the question, then a judge should examine analogous decisions from other jurisdictions. As a final authority one could look to legislative history, but should view committee reports as more reliable than comments of individual legislators. The use of these authorities is consistent with the exercise of the Article III judicial power because they serve to confine the exercise of judicial power and respect the powers committed to the other branches of government. Question 7. Please assess the legitimacy of the following three approaches to establishing a constitutional right not previously upheld by the 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 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. It is certainly legitimate for a judge to look to the plain meaning of the text of a statute and original intent of the Framers of the Constitution in considering claims of a constitutional right not previously upheld by the court. Similarly, it is just as legitimate for the ratification of an Amendment under Article V of the Constitution to establish a constitutional right not previously upheld by the court. I do not believe that assessing or trying to discern the ``community's Interpretation'' of a constitutional text is a legitimate approach in establishing or interpreting constitutional rights. Question 8. How would you, if confirmed, analyze a challenge to the constitutionality of a statute in a case that was not one of the first impression? In a case of first impression? Answer 8. A constitutional challenge that was not one of first impression would be disposed of by following the precedent of the Supreme Court and the Third Circuit Court of Appeals. In the rare constitutional challenge which was clearly first impression I would employ the following methodology. First, I would acknowledge that there is a presumption of constitutionality of any statute. Second, I would look to the plain meaning of the statute. Third, I would search for any analogous Supreme Court rulings concerning similar statutes. Fourth, I would look to the Third Circuit for decisions concerning similar statutes in the absence of Supreme Court holdings. Fifth, I would look to rulings concerning similar statutes in other jurisdictions and review the legislative history of the statute by looking at committee reports rather than the individual comments of legislators. 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 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 to privacy, not based on specific language in the text of the Constitution but based on ``penumbras, formed by emanations from those guarantees that help give them life and substance''. Similarly, in Alden v. Maine the Supreme Court looked not to the text of the Eleventh Amendment, but to the structure and history of the Constitution to find that states have ``sovereign immunity'' from private rights of action absent a waiver of that immunity. 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. Both cases involve the question of the extent to which Congress can legislate on issues said to affect interstate commerce under the commerce clause of the Constitution (Article I, Section 8). The Supreme Court found that wheat production (even for personal consumption) affected interstate commerce (Wickard v. Filburn), but that creating ``Gun Free School Zones'' was not sufficiently related to interstate commerce (United States v. Lopez). In Wickard, the Supreme Court sustained Congress's right to regulate interstate commerce thus increasing the power of the Federal government compared to the states. In Lopez, the Supreme Court found that documentation of the regulated activity's affect on interstate commerce was lacking and thus limited the Federal government's power in an area traditionally reserved to the states. In both cases, the Supreme Court exercised judicial power to review congressional power. 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. Clearly the cases referred to in the question are examples of the nature and quality of the limits on state and federal power in different contexts. In Baker v. Carr and Shaw v. Reno the Federal court asserted jurisdiction over redistricting and apportionment cases even though they involved state political decision. However in Shaw, the Supreme Court held that ``racial gerrymandering'' for any reason was subject to strict scrutiny by the courts. In Alden v. Maine, the Supreme Court found that Congress could not subject the state of Maine to private lawsuits without its consent, thereby allowing the state to assert its ``sovereign immunity''. Thus, the court indicated that its interpretation preserved state sovereignty from federal intrusion. In United States v. Lopez, the Supreme Court found that Congress failed to specify how the criminal statute affected interstate commerce and in Printz v. United States the Supreme Court found that Congress did not have power to mandate the states to carry out a program legislated by Congress. The respective roles of the state and federal government in our federal system has been a source of strength for our country. As these cases illustrate, the Constitution creates a healthy tension as to the limits of power each has with respect to the other. The Constitution's division of power helps preserve the liberty of the individual from the concentration of power in one sovereign or one branch of government. Consequently, federal judges are limited to a certain degree, by the power or lack of it that may derive from the impact of federalism. 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 other state agencies? Answer 2. No, a Federal district court does not have the expertise to set such rules and should avoid taking on administrative responsibilities for prisons, schools or state agencies. Question 13. Would it be appropriate for a court to hold unconstitutional a statute which existed before and after the ratification of a constitutional amendment, based on an interpretation of that amendment which creates an implied right conflicting with the preexisting statute? Answer 13. A federal district court judge must try to give both the statute and the constitutional amendment effect. Since all statutes are presumed to be constitutional, and the question says that the Constitutional amendment at issue ``implies'' a created right a District judge should proceed very cautiously in considering any claim that such a statute is unconstitutional. A Federal District Court is obligated to follow any precedent of the Supreme Court or Court of Appeals interpreting the constitutional amendment or the statute. Responses of Berle M. Schiller 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 the District Court should answer all questions to the best of his/her ability, within the confines of the Judicial Canons of Ethics and not in any way that would indicate or suggest a fixed view on any issue. A judge is obligated to follow the law despite any personal beliefs he or she might have about a constitutional issue. 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 think a Federal Judicial nominee may answer any question on constitutional law as far as what the Supreme Court or Court of Appeals has held in particular cases, what the Constitution provides or what the nominee himself may have said on a constitutional issue. Beyond that a candidate must be careful not to undermine his partiality or fairness by addressing particular facts or issues, real or hypothetical. Question 3. What is the purpose of the United States Senate in holding hearing on nominees for the federal bench? Answer 3. The purpose for a Senate hearing for district court nominees is to assess whether the nominee has the integrity, learning, impartially and commitment to follow the law and decisions of the Supreme Court and that nominee's Circuit Court of Appeals. Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer 4. No, I do not think there are any questions that bear on a nominees' qualifications that are off limits. However, a nominee may not be able, pursuant to the Canon of Judicial Ethics, and the candidate's legitimate concern for the appearance and reality of fairness and impartiality to answer some of the questions. Question 5. 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 5. There is no scenario under which a district court or a United States Court of Appeals judge can refuse to follow a precedent of the Supreme Court of the United States. Question 6. If you were a Supreme Court Justice in 1856, what would you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393? Answer 6. It is hard to put myself in the life and times of a Justice of the Supreme Court in 1856. Without the benefit of the briefs and the evidentiary material I do not know how I would have decided the case. Question 7. In Dred Scott v. Sanford, 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 7. After the ratification of the Thirteenth and Fourteenth Amendments to the Constitution, the holding in Dred Scott v. Sanford is no longer applicable. Question 8. 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. Sanford, 60 U.S. (19 How.) 393 (1856)? Answer 8. Yes, as a judge in 1857, I would have been bound by the decision of the Supreme Court in Dred Scott v. Sanford. Question 9. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 9. Again, it is hard to put myself as a Justice on the Supreme Court in 1896. Without the benefit of the briefs and evidentiary material I do not know how I would have decided Plessy v. Ferguson. Question 10. 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 10. The precedent of Plessy v. Ferguson was overruled in 1954 by the case of Brown v. Board of Education and therefore the courts no longer are bound by the holding of Plessy v. Ferguson. Question 11. 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 11. Again, without the benefit of briefs and evidentiary materials it is difficult how to say how I would have ruled in Brown v. Board of Education. Question 12. 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 12. As a District court judge, I am bound by the holding of Brown v. Board of Education which continues to be good law. Question 13. If you were a Supreme Court Justice in 1973, what would you have held in the Roe v. Wade, 410 U.S. 113 (1973)? Answer 13. Again, it is difficult to say how I would have ruled in Roe v. Wade without the benefit of all the trial and appellate materials. Question 14. 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 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 law? Answer 14. As a District court judge, I would be bound by the holding in Roe v. Wade as modified by Planned Parenthood v. Casey, (505 U.S. 833 (1992)) whether or not I had any personal opinions to the contrary. Question 15. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 15. I have no personal views on the issue of abortion that would prevent me from following the Supreme Court opinions in Roe v. Wade and Planned Parenthood v. Casey, and any other precedents. Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 16. The Supreme Court has ruled that the death penalty is constitutional. I am bound by that decision and have no personal opinions that would cause me to be unable to impose or uphold a death sentence. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the constitution? Answer 17. The Second Amendment provides that ``the right of the people to keep and bear arms, shall not be infringed''. I will be bound by the language of the Second Amendment, the precedent of the Supreme Court and the Third Circuit Court of Appeals. I have no personal opinions that would have any bearing on any decisions to be made in cases that come before me. Question 18. 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 18. If I am fortunate enough to be confirmed as a District court judge, I would be bound by the holding in Planned Parenthood v. Casey. I hold no opinion that would interfere with my obligation to follow the law. Question 19. 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 19. On any legal issue presented regarding abortion rights I am bound by Planned Parenthood v. Casey and other precedents of the Supreme Court and the Third Circuit Court of Appeals. I have no personal views that would interfere with my obligation to follow precedent. Question 20 Do you believe that the death penalty is Constitutional? Answer 20. Yes, the Supreme Court has declared the death penalty constitutional. I am bound by that decision and have no personal opinions that would cause me to be unable to impose or uphold a death sentence. Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 21. The Supreme Court in Planned Parenthood v. Casey discusses in a general way when and how a precedent of the Supreme Court may be overruled. If I were a Supreme Court Justice I would employ many considerations such as whether any prior holding is intolerable because it defies ``practical workability'', whether any rule works a particular hardship to the ``consequences of overruling it and add inequity to the cost of repudiation'', whether principles of law have developed so that the old rule is no longer relevant, or whether the facts are so ``changed'' as to have robbed the old rule of significant application or justification.'' Question 22. Do you consider legislative intent and the testimony of elected officials in debates leading up to a passage of an act? And what weight do you give legislative intent? Answer 22. In the limited circumstances where there is an absence of legal precedent and if the language of a statute is unclear, judges can, as a last resort consider legislative history as a source for the meaning of a statute. A judge must be careful when looking at legislative history and may look to committee reports that are more reliable than comments of individual legislators. ______ Responses of R. Barclay Surrick 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. In our representative democracy it is the function of elected representatives to attempt to resolve social problems. It is not the function of the Federal Courts to act in response to such problems when the legislature has failed to do so. Federal Courts may deal only with the specific cases or controversies before them and should not act as legislatures of last resort. 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. The death penalty has been declared constitutional by the Supreme Court of the United States. As a trial judge my job is to apply the law. I have no personal objection that would make me reluctant to uphold or impose 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. When Congress or a State Legislature determines that a mandatory sentence is appropriate in certain circumstances, a judge is obligated to apply that mandatory sentence in those circumstances. As a state trial judge for the past 23 years, I have imposed mandatory minimum sentences on many occasions. I 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. We have sentencing guidelines in Pennsylvania, and I have applied those guidelines in sentencing criminal defendants. Congress and State Legislatures have determined that sentencing guidelines are desirable in that they provide consistency and predictability in the sentencing process. Although I have never worked under the Federal Sentencing Guidelines, I would have no difficulty applying them. Responses of R. Barclay Surrick 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 decision, should that individual be confirmed? Answer 1. I have been a state trial judge for the past 23 years. The litigants who come into my court have a right to expect that they will get fair and impartial justice from a completely neutral judge. If I were to be asked questions on a matter, constitutional or otherwise, that is before my court or which may come before my court, except to state holdings in well settled areas of the law, I would be compelled to indicate that I could not answer the questions. Answering questions concerning my personal views on issued that I may have to decide would call into question my ability to be fair and impartial. 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 United States Senator, I would like to have as much information about a nominee as possible before voting on that nominee. Clearly, the more information a Senator has about a nominee, the less difficult it is to perform ``the advice and consent'' function. When considering a federal district court nominee, it is most important for a Senator to determine a nominee's understanding of the role of the judiciary in our system of federalism. Question 3. What is the purpose of the United States Senate in holding hearings on nominees for the federal bench? Answer 3. The United States Senate holds hearings on nominees for the federal bench so that Senators may gather additional information about the background of each nominee. It also gives the Senators an opportunity to observe and talk with each nominee to assist in determining whether he or she has the personal and professional qualifications to be a federal judge. Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer 4. A United States Senator should be permitted to ask any question that he or she feels necessary to enable him or her to make an intelligent decision in performing the ``advice and consent'' function. However, because of the Code of Judicial Conduct, it may be inappropriate for a nominee to respond to a Senator's question, no matter how helpful an answer would be to the Senator as he or she decides whether to support the nominee. Question 5. 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 5. It is the obligation of a U.S. District Court Judge or a U.S. Court of Appeals Judge to follow precedent. It would be improper for a trial judge or an appellate court judge to refuse to follow Supreme Court precedent because he or she believes that the precedent is contrary to the Constitution. Question 6. If you were a Supreme Court Justice in 1856, what would you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856)? Answer 6. Not having had the benefit of participating in the proceeding or of reviewing, hearing, and discussing the matter with my contemporary Justices, it is impossible for met to speculate as to how I would have ruled as a Supreme Court Justice in this case. Question 7. In Dred Scott v. Sanford, 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 7. The Thirteenth, and Fourteenth Amendments abrogated the Court's decision in Dred Scott v. Sanford. Therefore, Dred Scott v. Sanford has no precedential value in courts today. Question 8. 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. Sanford, 60 U.S. (19 How.) 393 (1856)? Answer 8. A judge is required by his or her oath to follow binding precedent from the Supreme Court. Until the Civil War Amendments were passed, I would have been required to follow the precedent of Dred Scott v. Sanford, regardless of my personal view of the matter. Question 9. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896). Answer 9. Not having had the benefit of participating in the proceeding or of reviewing, hearing, and discussing the matter with my contemporary Justices, it is impossible for me to speculate as to how I would have ruled as a Supreme Court Justice in this case. Question 10. 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 10. The Supreme Court's reasoning in Plessy v. Ferguson was rejected in Brown v. Board of Education. Therefore, Plessy v. Ferguson has no precedential value today. Question 11. If your were a Supreme Court Justice in 1954, what would you have held in Brown v. Board of Education, 347 U.S. 483 (1954)? Answer 11. Not having had the benefits of participating in the proceeding or of reviewing, hearing, and discussing the matter with my contemporary Justices, it is impossible for me to speculate as to how I would have ruled as a Supreme Court Justice in this case. Question 12. 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 12. The precedent of Brown v. Board of Education has not been overruled and thus is binding on all trial and appellate courts. Question 13. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer 13. Not having had the benefit of participating in the proceeding or of reviewing, hearing, and discussing the matter with my contemporary Justices, it is impossible for me to speculate as to how I would have ruled as a Supreme Court Justice in this case. Question 14. 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 of the Justice Rehnquist dissent in that case? Answer 14. As a federal judge I would be bound by the majority opinion of the Court in Roe v. Wade as modified by Planned Parenthood v. Casey. Question 15. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 15. As a United States District Court Judge, I would be obligated to apply Supreme Court precedent in the area of abortion regardless of whether I personally agreed with that precedent. If I become a District Court judge, I will fulfill my obligation. As a state trial judge, I am called upon almost daily to decide cases based upon the law given to me by the legislature and the appellate courts and not based upon my personal view of what the law should be. Litigants in my courtroom have a right to expect me to be fair, impartial and neutral. It would be inappropriate for me to announce my personal view on matters on which I may have to rule. Any pronouncement of my personal views would bring into question my ability to be fair and impartial. Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 16. As a United States District Court Judge, I would be obligated to apply Supreme Court precedent in the area of the death penalty regardless of whether I personally agreed with that precedent. If I become a District Court judge, I will fulfill my obligation. As a state trial judge, I am called upon almost daily to decide cases based upon the law given to me by the legislature and the appellate courts and not based upon my personal view of what the law should be. Litigants in my courtroom have a right to expect me to be fair, impartial and neutral. It would be inappropriate for me to announce my personal view of matters on which I may have to rule. Any pronouncement of my personal views would bring into question my ability to be fair and impartial. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 17. As a United States District Court Judge, I would be obligated to apply Supreme Court precedent in the area of the Second Amendment regardless of whether I personally agreed with that precedent. If I became a District Court judge, I will fulfill my obligation. As a state trial judge, I am called upon almost daily to decide cases based upon the law given to me by the legislature and the appellate courts and not based upon my personal view of what the law should be. Litigants in my courtroom have a right to expect me to be fair, impartial and neutral. It would be inappropriate for me to announce my personal view on matters on which I may have to rule. Any pronouncement of my personal views would bring into question my ability to be fair and impartial. Question 18. 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 believed the ``right to privacy'' includes the right to take away the life of an unborn child? Answer 18. As a United States District Court Judge, I would be obligated to apply Supreme Court precedent on the right to privacy regardless of whether I personally agreed with that precedent. If I become a District Court judge, I will fulfill my obligation. As a state trial judge, I am called upon almost daily to decide cases based upon the law given to me by the legislature and the appellate courts and not based upon my personal view of what the law should be. Litigants in my courtroom have a right to expect me to be fair, impartial and neutral. It would be inappropriate for me to announce my personal view on matters on which I may have to rule. Any pronouncement of my personal views would bring into question my ability to be fair and impartial. Question 19. 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 19. As a United States District Court Judge, I would be obligated to apply Supreme Court precedent on this issue regardless of whether I personally agreed with that precedent. If I become a District Court judge, I will fulfill my obligation. As a state trial judge, I am called upon almost daily to decide cases based upon the law given to me by the legislature and the appellate courts and not based upon my personal view of what the law should be Litigants in my courtroom have a right to expect me to be fair, impartial and neutral. If would be inappropriate for me to announce my personal view on matters on which I may have to rule. Any pronouncement of my personal views would bring into question my ability to be fair and impartial. Question 20. Do you believe that the death penalty is Constitutional? Answer 20. Yes. The Supreme Court has determined the death penalty to be Constitutional. Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 21. Stability and certainty in the law are desirable. Stare decisis provides that certainty and stability. Precedent should be overruled only in those limited situations where existing precedent has proven to be intolerable and unworkable, where the precedent is no more than an old remnant of an abandoned doctrine, or where facts have so changed as to have robbed the old rule of significant application or justification. Question 22. 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 22. When dealing with a statute, the Court tries to determine the intended application of the statute. If the language of the statute is clear, the court need look no further. If the language of the statute is ambiguous, the Court should attempt to determine what was intended by the legislature. The rules of statutory construction may be helpful in making this determination. The legislative history and Committee Reports may also be helpful. If the legislative debates and Committee Reports are such that the Court can get a clear picture of what the legislature intended, then this should be considered in the Court's determination. On the other hand, if there was little or no debate or if the debate and Committee Reports were equivocal, they would be of little value. Responses of R. Barclay Surrick 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 judge on the Federal District Court for the Eastern District of Pennsylvania, my duty would be to give full force and effect to the decisions of the United States Supreme Court and to the United States Court of Appeals for the Third Circuit, regardless of any personal views on a particular issue. I am committed to following the precedents of higher courts. As a state trial judge for the last 23 years, I have faithfully followed precedent from the higher courts. 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. Even if I believed that the United States Supreme Court or the United States Court of Appeals for the Third Circuit had seriously erred in rendering a decision, as a District Court Judge I would be bound to follow the precedent of the courts above me. 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 all issues, including any equal protection matters, that may come before me. 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 that would prevent me from imposing a death sentence if the law called for such a punishment. Question 5. Do you believe that 10, 15, or even 20-year delays between convictions 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. Long delays between conviction of a capital offender and execution are not desirable and should be avoided. Once Congress or a state legislature has made a policy decision that capital punishment is 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 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. Assuming that there is no appellate court precedent on point, when determining the effect of a statute or constitutional provision, a federal judge should first look to the language of the statute or constitutional provision. If the language of the statute or constitutional provision is clear, the judge should give effect to the plain meaning. If the language is ambiguous, the judge should attempt to determine what the drafters intended. The legislative history of the provision may be helpful in determining this intent. Rules of statutory construction may also be used to try to determine the intended effect to be given to a statute. If the intended effect is still unclear after considering the foregoing, decisions in analogous situations may be consulted. 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 interpreting any Constitutional provision, judges should first look to the plain meaning of the text and the Framers' original intent. A Court should also look to precedent interpreting a provision. If the text and intent are unclear, the Court should not act. There are legitimate concerns about adhering to Justice Brennan's views on ``community interpretation'' of constitutional text. To the extent that Justice Brennan means that courts should create rights and remedies out of judicial wholecloth, I disagree. A vehicle exists in Article V of the Constitution for the creation of Constitutional rights not already existing in the document. Article V of the Constitution provides for amendments to the Constitution, initiated either by both houses of Congress, or by the legislatures of two thirds of the states. Such amendments, if ratified, are valid to ``all intents and purposes, as part of this Constitution.'' If an amendment to the Constitution that affords new constitutional right(s) is ratified, it is within the power of Article III judges to consider those new rights from the plain meaning of the text, as if it were part of the original Constitution. Amendment of the Constitution, while cumbersome, has been accomplished twenty-five times in the history of this democracy. It is the most legitimate approach to creating a 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 I were called upon to analyze a challenge to the constitutionality of a statute in a case that is not one of first impression, I would look to precedent from the United States Supreme Court and the United States Court of Appeals for my Circuit, and I would be bound by that precedent. If such a question were to arise in a case of first impression, I would look to the words of the applicable constitutional provision, to existing precedent analogous to the case before me, and to the intent of the Framers in drafting that constitutional provision. 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. Griswold v. Connecticut addressed the constitutionality of a Connecticut law forbidding the use of contraceptives. While the particular right to contraceptive use was not mentioned in the Constitution or Bill of Rights, the Court found that certain guarantees of the Bill of Rights have ``penumbras'' that help give them life and substance. The Griswold Court considered the right to privacy in marriage to be one of these guarantees. At issue in Alden v. Maine was a suit under the Fair Labor Standards Act against the state of Maine in state court. The Supreme Court previously had ruled in Seminole Tribe v. Florida that Congress lacked the power under Article I, Sec. 8 to abrogate States' sovereign immunity in federal court even when the intent of Congress was clear. The question of whether a non-consenting state could be subject to federal suits in state court was, however, a case of first impression. The Court held that non-consenting states would not be subject to federal suits in their own state courts. In reaching this decision, the Supreme Court looked to the history and structure of the Constitution and concluded that the States' immunity from suit was part of a ``residuary and inviolable sovereignty'' which existed prior to and was unaffected by the Constitution. It looked to principles of federalism in determining that this particular exercise of Congressional power was inconsistent with the constitutional structure and the dignity and respect due a sovereign state. The Founders' silence on States' immunity from suit in their own courts suggested to the Court that this proposition was so well established at the time of ratification that no one conceived that the Constitution has altered it. In both cases, the Court looked beyond of the literal text of the Constitution to make its conclusions. Alden had the effect of limiting Congressional power to subject States to suits arising under federal law. Griswold was a broad use of judicial power to find rights in the Constitution that were not expressly articulated. 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. Each of these cases concerns the breadth of Congress' authority to regulate under its Commerce power as derived from Article I, Sec. 8 of the United States Constitution. Wickard v. Filburn represents a high-water mark in judicial deference to Congress. At issue in Wickard was a fine assessed by the Secretary of Agriculture against an individual wheat farmer who had harvested more wheat than he was permitted under the Agricultural Adjustment Act of 1938. The Actaimed to avoid fluctuation in wheat prices by eliminating surpluses and shortages through regulation of the volume of wheat moving in interstate and foreign commerce. The Court upheld the penalty based on its belief that Congress could regulate wholly intrastate activities as long as, in the aggregate, they had a ``substantial effect'' on interstate commerce. In United States v. Lopez, the Court struck down the Gun-Free School Zones Act, marking the first time in more than 50 years that legislation was invalidated on the basis that Congress had exceeded its Commerce power. The Lopez Court distinguished Wickard, holding that while the production of wheat was commercial in nature, the Gun-Free School Act ``ha[d] nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms.'' Wickard and Lopez represent divergent views of the deference accorded Congress by the judiciary, and of the relationship of the federal government to the several States. The Wickard Court allowed Congress significant latitude in drafting legislation under the authority of Article I, Sec. 8, while the Lopez Court was far less deferential to Congress's expressed purpose. Writing for the majority in Lopez, Chief Justice Rehnquist asserted that ``[e]ven Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not.'' Wickard suggests an expansive view of Congress' authority, allowing federal regulation of anything that could possibly be conceived of as affecting the economy. Conversely, in Lopez, the Court limited to some extent Congressional reach under the Commerce Clause. 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 government. Answer 11A. United States v. Lopez: Striking down the Gun-Free Schools Act, the Court held that in order for Congress to exercise its rights under the Commerce Clause, Congress must demonstrate that there is more than a tenuous connection between the activity restricted and the impact on commerce. Under Lopez Congressional legislation in the area of a traditional state function appears to have been limited. B. Printz v. United States: This case struck down the Brady Handgun Violence Prevention Act provisions that required the chief law enforcement office of local jurisdictions to perform background checks on prospective handgun purchasers. Relying on the concept of ``dual sovereignty'' between the federal government and the states, the Brady Bill was viewed as an unconstitutional shifting of federal executive powers to state executives. According to the Printz Court, Congress may not transfer the President's responsibility to administer Congress's laws to State Executives who would implement the program without meaningful presidential control. C. Alden v. Maine: The Court held that Congress may not subject non-consenting States to a lawsuit arising under the Fair Labor Standards Act of 1938, passed pursuant to Congress's power under the Commerce Clause. Alden appears to protect state sovereignty against federal abrogation of that sovereignty. D. Baker v. Carr: The Court held that challenges under the Equal Protection Clause to apportionment of voting districts were judicable in federal courts. This was a landmark case allowing federal courts to exercise jurisdiction over districting questions regarding equality between voters of various districts, an area which had traditionally been in the exclusive province of the States. E. Shaw v. Reno: The Court found the 12th Congressional District in North Carolina to be an ``unconstitutional racial gerrymander,'' because it could not be understood as anything other than an effort to separate voters into different districts on the basis of race and would be subject to strict scrutiny. This case established that federal courts may strike down state districting plans where race was the ``predominant factor.'' It is unclear whether Shaw had a significant effect on the division of power between state and federal governments. 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. The fashioning of broad, structural remedies to fix ongoing problems in the administration of entities like prisons, schools, or state agencies is best left to the legislature and its duly elected representatives, not the courts. State legislatures and Congress have the institutional expertise to address and correct problems through a process of deliberate fact-finding, debate, and compromise. In contrast, Article III courts should limit their role to adjudicating cases within the specific jurisdiction afforded to them. A Federal District Court does not have the institutional expertise required to administer prisons, schools and state agencies. Question 13. Would it be appropriate for a court to hold unconstitutional a statute which existed before and after the ratification of a constitutional amendment, based on an interpretation of that amendment which creates an implied right conflicting with the preexisting statute? Answer 13. It is not the role of a United States District Court judge to strike down statutes on the basis of ``implied rights,'' unless directed to do so by the United States Supreme Court or Circuit Court of Appeals precedent. Statutes have a presumption of constitutionality. If a statute is in conflict with the express rights contained in a Constitutional Amendment, the statute must fall. Responses of Mary A. McLaughlin to Questions From Senator Thurmond Question 1. Ms. McLaughlin, you have written that ``Title IX's general prohibition of sex discrimination in education should be construed broadly * * * in order to effect the remedial purpose of the statute.'' Do you believe that Title IX mandates quotas for schools to equate the number of men's athletic teams to the number of women's athletic teams, or do you believe that a school should offer men's and women's athletics according to factors such as the interests of its students? Please explain. Answer 1. This question quotes from a law review comment I wrote while in law school 25 years ago: ``Implementing Title IX: The HEW Regulations'', 124 U. Penn. L. Rev. 806 (1976). I wrote the article to fulfill my writing requirement as a member of the university of Pennsylvania Law Review. The article describes the HEW regulations that became effective July 21, 1975, implementing Title IX of the Education Amendments of 1972. Although I have never litigated a Title IX case, I understand that in Williams v. The School District of Bethlehem, 998 F.2d 168 (3d Cir. 1993), the Third Circuit stated that ``the obligation of an educational institution in complying with the requirements of title IX in interscholastic athletics cannot be measured simply by comparing the number of teams available to each sex, but instead must turn on `[w]hether disparities of a substantial and unjustified nature exist in the benefits, treatment, services, or opportunities afforded male and female athletes in the institution's program as a whole.'' ' Id. at 175. If I am fortunate enough to be confirmed by the Senate, I will adhere faithfully to all Third Circuit and Supreme Court precedent on Title IX as in every other area of the law. Question 2. 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 2. It is not the role of federal courts to act in response to various social problems because the legislature has not acted on important issues. It is the role of a district court to apply the law as given to it by Congress, and in certain circumstances the state legislature, as that law has been interpreted by the Court of Appeals and the Supreme Court. The federal courts are courts of limited jurisdiction and a federal district court has no authority or discretion to review any issue in the absence of a specific grant of jurisdiction. Question 3. 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 3. 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 4. 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 4. I would have no reluctance to impose mandatory minimum criminal sentences. It is my understanding that mandatory minimum criminal sentences have been found constitutional. I was an Assistant United States Attorney for three-and-a-half years and I never had any problem or reluctance in enforcing the applicable substantive and penalty criminal laws. Question 5. 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 5. When I was an Assistant United States Attorney, there were no sentencing guidelines. During my time as an Assistant, I was often concerned when defendants convicted of the same crime and from similar backgrounds would be given divergent sentences from one court to another. I appreciate the goals of predictability, uniformity, and fairness that Congress sought in enacting the Federal Sentencing Guidelines. I am fully prepared to follow and apply the sentencing guidelines completely and without reservation. ______ Responses of Mary A. McLaughlin 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 fully committed to following the precedents of the Third Circuit and the Supreme Court faithfully and giving them full force and effect, even if I were to disagree with such precedents. Question 2. How would you rule if you believe the Supreme Court or the Court of Appeals had seriously erred in rendering a decision? Would you nevertheless apply that decision or 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. I would apply the Supreme Court's and the Court of Appeals' decisions even if I believe that a higher Court had erred. 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 fully committed to following the precedents of the Third Circuit and the Supreme Court on 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. No, I have no legal or moral beliefs that 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. Delays of 10, 15 or 20 years between conviction of a capital offender and exhaustion of all remedies seem excessive. I am fully committed to applying the precedents of the Third Circuit and the Supreme Court on this issue and any other issue. I agree that the federal courts should focus their resources on resolving capital cases fairly and expeditiously, in accordance with the applicable law, as interpreted by the Supreme Court and Courts of Appeals. 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. When reviewing a statute or constitutional provision, a court should apply the plain language of the statute or constitutional provision. A district court judge should also apply the precedents of the Court of Appeals and the Supreme Court interpreting the statute or constitutional provision. When reviewing a statute, a court should also apply statutory rules of construction, for example, the presumption of constitutionality and the obligation to interpret a statute to avoid constitutional infirmity. If the words of the statute are ambiguous and there is no precedent on point, one may look at legislative history but a court must be very cautious in doing so because it may not be reliable. Committee reports are probably the most reliable source of legislative history. The statements of elected officials in debates leading up to the passage of an act may be less reliable because the statements may not reflect any legislative consensus. 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. The first approach--interpreting the plain meaning of the text--is consistent with the limited judicial power established by Article III of the Constitution. With respect to the third approach, the Constitution clearly provides for ratification of an amendment under Article V. This approach would not implicate Article III unless and until the amendment came before a court for interpretation. Justice Brennan's approach of discerning the ``community's interpretation'' of a constitutional text exceeds the separation of powers of the Constitution because it presents the possibility of recognizing a right that was not intended by the original framers of the Constitution. 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 I am fortunate enough to be confirmed by the Senate, I would analyze a challenge to the constitutionality of a statute in a case that was not one of first impression as follows. I would look to the precedents of the Third Circuit and the Supreme Court with respect to the statute, and faithfully follow that precedent. If the case were one of first impression, I would start with a presumption of constitutionality. If neither the Third Circuit nor the Supreme Court had ever ruled on the statute, I would look to decisions of other circuits and other district courts for guidance. Although the statute might not have been considered before, it is likely that there will be Third Circuit and Supreme Court precedent on the type of challenge that is being made to the constitutionality of the statute. At all times, I would presume the constitutionality of the statute and follow the rules of statutory construction, for example, that a court has an obligation to interpret a statute to avoid constitutional infirmity. 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 forbidding use of contraceptives violated a ``right of marital privacy'' which the Court found to be within the ``penumbra'' of specific guarantees of the Bill of Rights. In Alden v. Maine, 119 S.Ct. 2240 (1999), the Supreme Court dismissed a lawsuit brought by State employees under the Federal Fair Labor Standards Act on the ground that ``sovereign immunity derives not from the Eleventh Amendment text but from the structure of the original Constitution itself.'' Id. at 2254. The Court restricted the power of Congress in Alden, thereby leaving more power to the States. In Griswold, the Supreme Court exercised judicial power in a way that limited State power. 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. Wickard v. Filburn, 317 U.S. 111 (1942), and United States v. Lopez, 514 U.S. 549 (1995) are two of a long line of Supreme Court cases exploring the reach of Congress's power under the Commerce Clause. Under Article I, Section 8, Congress has the power ``to regulate commerce with foreign nations, and among the several states and with the Indian tribes.'' In these two cases, coming more than 50 years apart, the Supreme Court explored the meaning of the Commerce Clause. In Wickard v. Filburn, the Supreme Court upheld the application of the Agricultural Adjustment Act of 1938 to the production and consumption of home grown wheat. In United States v. Lopez, the Supreme Court struck down the Gun-free School Zone Act of 1990 which forbade ``any individual knowingly to possess a firearm at a place that [he] knows * * * is a school zone.'' In Wickard, the Supreme Court applied an expansive view of the Commerce Clause, upholding 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. In U.S. v. Lopez, the Supreme Court placed limits on Congress' commerce power. In striking down the Gun-free School Zone Act as not having a sufficient effect on interstate commerce, the Court found that the Act had no jurisdictional requirement that the firearm at issue had traveled across State lines, and that Congress had not made sufficient findings about the interstate effects of the criminal act at issue. An expansive view of the Commerce Clause as reflected in Wickard increases Congress' power versus the judicial power and the federal government's power compared with the power of state governments. In Lopez, 1 the Supreme Court cut back on Congress' power under the Commerce Clause, thus leaving more power with the states. 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. Under the Constitution, the Federal Government is a government of limited powers. The Constitution thus protects the liberty of the individual by limiting the power of all three branches of government. The powers of Congress are set forth in Article I of the Constitution. The Tenth Amendment states that powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people. Article III limits the judicial power to cases arising under the Constitution or federal law. In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court struck down the Gun-free School Zone Act of 1990 which forbade ``any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone.'' The Court found that the Act had no jurisdictional requirement that the firearm at issue had traveled across State lines, and that Congress had not made sufficient findings about the interstate effects of the criminal act at issue. In Alden v. Maine, 119 S.Ct. 2240 (1999), the Supreme Court dismissed a lawsuit brought by State employees under the Federal Fair Labor Standards Act on the ground of the Eleventh Amendment. The Court went beyond 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. Printz v. United States, 521 U.S. 898 (1997), is an example of a case in which the Supreme Court has placed greater limits on Congress' power to enact legislation that affects only States and commands them to take certain actions. In Printz, the Court struck down 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. Lopez, Alden, and Printz each left more authority to the States. At issue in Baker v. Carr, 369 U.S. 1986 (1962), was a claim that a 1901 statute of Tennessee apportioning the members of the General Assembly among the state's 95 counties denied the plaintiffs the equal protection of the laws by virtue of the debasement of their votes. The Supreme Court held that the state's apportionment did not present a non-justifiable political question. In Shaw v. Reno, 509 U.S. 630 (1993), the Supreme Court reviewed a North Carolina reapportionment plan that was challenged as an unconstitutional racial gerrymander. The Supreme Court held that districting based on race was subject to strict scrutiny and remanded the case to the district court to determine whether the plan was narrowly tailored to further a compelling governmental interest. In these cases, the Supreme Court exercised judicial power in a way that limited state authority with respect to apportionments. 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. Would it be appropriate for a court to hold unconstitutional a statute which existed before and after the ratification of a constitutional amendment, based on an interpretation of that amendment which creates an implied right conflicting with the preexisting statute? Answer 13. If I am fortunate enough to be confirmed by the Senate and this issue came before me as a case not of first impression, I would faithfully apply the precedents from the Third Circuit and the Supreme Court. If it were a case of first impression, I would start my analysis with a presumption of the statute's constitutionality. I would also look to analogous Third Circuit and Supreme Court precedent in evaluating the arguments of the parties. Question 14. In 1988, you were the recipient of the ACLU Civil Liberties Award, presented by the ACLU of Pennsylvania. Presumably, this award is given to individuals who share some of the same beliefs as the organization making the award. I would like to know whether you agree or disagree with the following positions advocated by the ACLU, and the reasons for your agreement or disagreement with those positions. Answer 14. It is my understanding that I received the award from the ACLU because of pro bono litigation I had done. I and another partner at a big firm were given this award to encourage the big firms in Philadelphia to participate in pro bono litigation. I am not, and have never been, a member of ACLU. TheACLU could not have known anything about my beliefs on any issues. I am not aware of the ACLU's position on any of the issues discussed in question 14; but I will do my best to respond to each of the sections of question 14. A. ``The ACLU has opposed the outright criminalization of drugs since 1968, believing that the best way to deal with drugs is regulation, not incarceration.'' Do you agree or disagree with this approach to the drug problem? Please explain your answer. The question of the criminalization of drugs is a policy decision that belongs to Congress. I do not agree with the ACLU's view on this issue. When I was an Assistant United States Attorney for the District of Columbia for three-and-a-half years, I prosecuted numerous drug cases. I have no personal views whatsoever that would prevent me from applying the drug laws fully and completely including sentencing guidelines and mandatory minimums. B. ``Capital punishment . . . is a costly, irreversible, and barbaric practice, the epitome of cruel and unusual punishment. It does not deter crime, and the way it is implemented is grotesquely unfair.'' Do you agree or disagree with this assessment of capital punishment? Please explain your answer. The question of when capital punishment is appropriate for a crime is a policy decision for the legislature. I disagree with the view expressed in B. The Supreme Court has clearly ruled that the death penalty is constitutional. I have no personal views that would prevent me from fully and completely imposing or upholding a death sentence in any criminal case that might come before me as a federal judge. C. ``The ACLU believes that since we have attached such enormous social consequences to marriage, it violates equal protection of the law to deny lesbian and gay couples the right to wed.'' Do you agree or disagree with this position? Please explain your answer. The definition of marriage has traditionally been left to the legislature. To the extent that this question may call for a legal conclusion on issues that are currently being litigated in courts, commenting on whether such an issue violates the Constitution might constitute an advisory opinion not permitted by the Code of Judicial Conduct. I do understand, however, that in Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court held that the state of Georgia could criminalize private, consensual homosexual conduct. That decision has not been overruled. I have no personal views that would prevent me from faithfully following Supreme Court and Third Circuit precedent in this area or on any other issue. D. ``Requirements that teenagers notify their parents or get their consent before obtaining contraception endanger the public health and violate the law . . . [C]onditioning a teenager's access to contraception on parental consent or notification is unconstitutional, as well as contrary to the confidentiality mandates of certain federal statutes.'' Do you agree or disagree with this position? Please explain your answer. The question of parental consent in connection with teenagers' use of contraception, like the other three issues, has also been an area for state legislation. If I am fortunate enough to be confirmed by the Senate and am faced with a case such as D, I would apply the precedents from the Supreme Court and the Third Circuit. I have no personal views whatsoever that would prevent me from faithfully following Supreme Court and Third Circuit precedent in this area or on any other issue. ______ Responses of Mary A. McLaughlin 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. Every nominee for a federal judgeship should answer all questions from the Senate to the best of his or her ability, honestly, and in good faith. Nominees may at times be constrained in answering questions by legitimate concerns not to appear to be prejudging cases or offering advisory opinions. 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 it may be difficult to advise and consent to a nominee who refuses completely to answer questions on Constitutional issues. A nominee must be careful, however, not to appear to be prejudging any case or issue, or otherwise to compromise the reality and appearance of fairness. 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 so that the Senate may assess the nominee's qualifications for the job, such as a commitment to be fair and impartial; a commitment to be respectful of and courteous to all who appear before him or her; the legal experience to be able to handle the complex civil and criminal matters with which a federal judge is faced; the intellectual/analytical ability toapply the precedents of the Court of Appeals and the Supreme Court; and the commitment to follow precedent, without regard to any personal views. Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer 4. No, there are no questions that are off limits for a Senator to ask. Question 5. 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 5. No, I do not think that there are any circumstances under which a United States District Court Judge or United States Court of Appeals Judge may refuse to apply a Supreme Court precedent to a case before him or her. Question 6. 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 6. It is very difficult for me to say what I would have done had I been a Supreme Court Justice at the time of the Dred Scott decision. I would have read the briefs, studied all the precedents in the area, listened to the arguments, and listened to the views of my colleagues. Because I cannot recreate that situation, I am not able to say specifically how I would have decided that case. Question 7. 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 7. It is my understanding that the Dred Scott decision has been overruled by the passage of the 13th and 14th amendments to the Constitution. Question 8. If you were a judge in 1857, would you have been bound by your Oath and would you have been mandated to following the binding precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)? Answer 8. Yes, if I had been a judge in 1857, I would have been bound by my oath and mandated to follow the binding precedent of Dred Scott. Question 9. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 9. It is very difficult for me to say what I would have done had I been a Supreme Court Justice at the time of the Plessy v. Ferguson case. I would have read the briefs, studied all the precedents in the area, listened to the arguments, and listened to the views of my colleagues. Because I cannot recreate that situation, I am not able to say specifically how I would have decided that case. Question 10. 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 10. My understanding is that Plessy v. Ferguson was overruled by Brown v. Board of Education, 347 U.S. 483 (1954). Question 11. 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 11. It is very difficult for me to say what I would have done had I been a Supreme Court Justice at the time of the Brown v. Board of Education case. I would have read the briefs, studied all the precedents in the area, listened to the arguments, and listened to the views of my colleagues. Because I cannot recreate that situation, I am not able to say specifically how I would have decided that case. Question 12. 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 12. District Court judges and judges of Courts of Appeals must faithfully apply the decision of Brown v. Board of Education as they would any other binding Supreme Court precedent. Question 13. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer 13. It is very difficult for me to say what I would have done had I been a Supreme Court Justice at the time of the Roe v. Wade case. I would have read the briefs, studied all the precedents in the area, listened to the arguments, and listened to the views of my colleagues. Because I cannot recreate that situation, I am not able to say specifically how I would have decided that case. Question 14. 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 14. It has not been my practice to read Supreme Court cases with a view to determining whether they are right or wrong or whether I agree or disagree with them. I try to understand them and their application. I have no personal views that would prevent me from following the precedent of Roe v. Wade, as modified by Planned Parenthood v. Casey, and any subsequent Supreme Court precedent in the area. Question 15. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 15. The Supreme Court has held in Roe v. Wade, as modified by Planned Parenthood v. Casey, that a state may put restrictions on a woman's right to terminate a pregnancy pre-viability, so long as the restrictions are not an undue burden or a substantial obstacle to the woman's right. I have no personal view on the issue of abortion that would prevent me from fully and faithfully following the current and any subsequent precedents of the Supreme Court and the Third Circuit. Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 16. The Supreme Court has held the death penalty constitutional. Gregg v. Georgia, 428 U.S. 153 (1976). I have no personal view on the issue of the death penalty that would prevent me from fully and faithfully following Gregg v. Georgia and any subsequent Supreme Court and Third Circuit precedent in the area. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 17. If I am fortunate enough to be confirmed by the Senate, and if I were assigned a case involving the Second Amendment to the Constitution, I would look to the plain language of the Constitution and all relevant precedent. I have no personal view on the Second Amendment to the Constitution that would prevent me from fully and faithfully following Supreme Court and Third Circuit precedent in the area. Question 18. 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 18. I understand Planned Parenthood v. Casey to mean that a state may put restrictions on a woman's right to terminate a pregnancy pre-viability, so long as the restrictions are not an undue burden or a substantial obstacle to the woman's right. I have no personal views on this issue that would prevent me from following faithfully current and any subsequent Supreme Court or Third Circuit precedent. Question 19. 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 19. I do not have any personal beliefs or views that would prevent me or hinder me from applying current and subsequent Supreme Court and Third Circuit precedent on this issue. Question 20. Do you believe that the death penalty is Constitutional? Answer 20. Yes, the Supreme Court has held that the death penalty is constitutional. Gregg v. Georgia, 428 U.S. 153 (1976). Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 21. If I were a Supreme Court justice, I would very carefully review the law on stare decisis and other related concepts. The Supreme Court has set forth factors it considers when it is asked to overrule a prior decision. They include: whether the prior decision has proven unworkable; whether the prior decision could be overruled without serious inequity to people who have relied on it; whether legal principle has evolved so that the prior decision is a doctrinal anachronism discounted by society; and whether the factual underpinning of the rule has changed so that the central holding of the prior decision has become obsolete. Question 22. 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 22. When reviewing a statute, a court should apply the literal language of the statute. A district court judge should also apply the precedents of the Court of Appeals and the Supreme Court interpreting the statute. A court should also apply statutory rules of construction, for example, the presumption of constitutionality and the obligation to interpret a statute to avoid constitutional infirmity. If the words of the statute are ambiguous and there is no precedent on point, one may look at legislative history but a court must be very cautious in doing so because it may not be reliable, for example, committee reports may be more reliable than the floor debates. Question 23. If a nominee proves to be an activist lawyer, to the point where that lawyer receives awards celebrating his/her activism in a controversial area, do you believe that a proven activist lawyer would be qualified to be a federal judge? Answer 23. I believe that to be qualified as a federal district court judge, any lawyer must have the following qualities: a commitment to be fair and impartial and to comply strictly with the oath of office; a commitment to follow precedent, without regard to any personal views; a commitment to be respectful and be courteous to all who come before the Court; the breadth of experience to deal with the complicated civil and criminal issues that come before the Court; the intellectual and analytical ability to analyze and understand the Constitution, the Court's binding precedents, and the statutes that he or she will have to apply. Respectfully, I do not consider myself to be an activist lawyer. I would think that the fact that a lawyer may receive an award from any group for his or her legal work does not make the lawyer an activist. During my 24 years of practice, I have been involved in less than a half dozen pro bono cases. For most of my career, I have represented corporate defendants. I have always had to struggle to find the time out of my busy corporate practice to fulfill what I believe is every practicing lawyer's obligation to do pro bono work. In the 24 years since graduation from law school, I have worked for the United States as a criminal prosecutor, taught law at three distinguished law schools, acted as Chief Counsel to a Senate Judiciary Subcommittee, and been a civil litigator at two big firms. I have been honored with awards for my work as an Assistant United States Attorney and as a Law School Professor: the Attorney General Special Achievement Award; and an outstanding teaching award voted by the students of Vanderbilt Law School. In my civil practice, I have worked for a wide variety of corporations, such as Philip Morris, Campbell Soup Company, Bell Atlantic Corporation, and Allied Signal, and for individuals and non- profit entities, such as 79 members of the House of Representatives, and poor women on welfare. In each instance, I tried my best to act in accordance with the highest standards of professionalism. While at Dechert Price & Rhoads I also spent thousands of hours on the administration and management of the firm. I was two times elected to the firm's Policy Committee, Assistant Chair of the Trial Team, a member of the Professional Resources Committee that evaluates all associates in the firm, a member and then chair of the firm's Hiring Committee and, the chair of many important committees like the committee that nominated our current chairman. My pro bono work has been a very small part of my 24 year legal career. I think that there may be a misunderstanding about the ACLU award I received. I am not and never have been a member of the ACLU. It is my understanding that the ACLU gave the award to me and another big firm partner to encourage the partners of big firms in Philadelphia to participate in pro bono litigation. The ACLU did not give the award to me because of any personal views I hold because the ACLU could not have known my personal views on any issue. Question 24. In 1988 you were involved in the case Jane Roe, et al. v. Operation Rescue, where you represented on a pro-bono basis the interest of Planned Parenthood, NARAL, and a physician who did late term abortions. This was initially a class action lawsuit using racketeering statutes against pro-life protestors. What drew you to this case and why did you feel it necessary to get involved in this case? Answer 24. I became involved in this case in 1988 at the request of a senior partner in my firm. Prior to my involvement in this case, I had had no contact with the Women's Law Project or any of the plaintiffs in the case. I had never before been involved in the issue of abortion either in litigation or in any kind of political activity. The factual situation prior to the filing of the case was that Operation Rescue had announced it was coming into Philadelphia (and other cities around the country) to ``blockade'' women's health centers in the area. Several women's health centers had asked the Women's Law Project for its assistance in stopping the centers from being shut down. The Women's Law Project then asked for assistance from one of my firm's senior partners, who asked me to work on the case. The plaintiffs obtained an injunction to prevent the blockading of the health centers. The injunction was narrowly limited to allow the individuals to protest but not to prevent women from getting into the centers. This case went on for some years but my assistance to the Women's Law Project ended after the grant of summary judgment to the plaintiffs and affirmance by the Third Circuit. Question 25. You were involved in a successful challenge to Pennsylvania's restrictions on Medicaid abortions in the Blackwell Health Center case. What was your involvement in that cause and how much money did the Women's Law Center receive as a result of your lawsuit? Also, why did you feel it necessary to become involved in this case? Answer 25. I became involved in the Blackwell Health Center case at the request of an attorney at the Women's Law Project who had previously been an associate at Dechert Price & Rhoads. At issue in this case were two provisions of a state statute that did not provide medicaid payments to women (1) who were pregnant as a result of rape or incest and wanted to terminate their pregnancy unless they had reported the rape or incest to the police, or (2) who wanted to terminate their pregnancy because their life was in danger unless two doctors had certified that their life was in danger. On behalf of the clients, we argued that these provisions were inconsistent with the Hyde Amendment and, therefore, violative of the Supremacy Clause. The district court granted summary judgment in favor of the plaintiffs and the Third Circuit affirmed. I took the case for the following reasons. First, before agreeing to act as co-counsel, I reviewed the law and learned that in 1980, the Third Circuit had ruled that the federal medicaid statute, as modified by the Hyde Amendment, required participating states to fund those abortions for which federal reimbursement is available. In addition, the Department of Health and Human Services had issued regulations, stating (a) that the states could impose reasonable reporting requirements on the victims of rape or incest only if the state had a waiver provision for those reporting requirements; and (b) that the states could not require more than one physician to certify that the woman's life was in danger. Secondly, the plaintiffs in the case were poor women who had been raped or were the victims of incest. I though of this case as one about the rights of poor women who had been the victims of violence. The third reason I took the case is that it presented interesting legal issues. The court ordered that attorneys' fees be paid to the Women's Law Project for the hours they spent litigating successfully this case in the amount of $58,546.00. Question 26. Obviously membership in any group is not a disqualifying factor to being confirmed by the Senate to be a federal judge. In 1998 you received an award from the ACLU celebrating your activism in the area of abortion rights. Do you agree with the ACLU's position on abortion rights? Answer 26. I am not, and have never been a member of the ACLU. I do not know the ACLU's specific position on abortion rights, and am not in a position to agree or disagree. If I am fortunate enough to be confirmed by the Senate, I would faithfully follow the Supreme Court precedent with respect to abortion. Question 27. Considering your history of being extremely active in the abortion rights movement, would you pledge to recuse yourself from any cases that involve abortion rights, if confirmed as a federal judge? Answer 27. I do not feel that I have been active in the abortion rights movement. During my 24 years of practice, I have litigated two cases touching on abortion. If I am fortunate enough to be confirmed by the Senate, I would adhere to the following procedure if I were assigned a case relating to abortion. 1. I would fully disclose to the litigants the two cases I worked on in this area with the Women's Law Project. 2. I would solicit the views of the litigants on the question of recusal. I think that it is very important that the litigants in any case feel that the judge is fair and impartial. A party's request that I recuse myself would be a very important factor in my consideration. 3. I would carefully consider recusal if any party was a former client of mine or an opposing party in any case I litigated. 4. I would carefully consider recusal if the Women's Law Project were representing any party. 5. In all cases, I would comply scrupulously with 28 U.S.C. Sec. 455 and Canon 3 of the Code of Conduct for United States Judges. If there were any doubt, I would err on the side of recusal. ______ Response of Petrese B. Tucker 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 Constitution commits the power to confirm a nominee to the Senate; and it is for the Senate to determine how to exercise that power. Nominees should attempt to answer the questions of a Senator, however a nominee may not be able to answer some questions about constitutional issues based on the code of judicial conduct and the limitation on rendering adversary opinions. If a nominee were to refuse to affirm that he or she would, notwithstanding any personal opinion, apply precedent of higher courts to cases that may come before him or her that would be problematic. 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 nominee may not be able to answer some questions about constitutional issues based on the code of judicial conduct and the limitation on rendering advisory opinions. In addition, a nominee may not be able to answer questions which would put into question the fairness and impartiality of the courts. Question 3. What is the purpose of the United States Senate in holding hearings on nominees for the federal bench? Answer 3. I understand that the purpose of the United States in holding hearings on nominees for the federal bench is to exercise the power of advice and consent under Article II Section 2 of the Constitution. Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer 4. No, a Senator may ask any question he or she wants. Question 5. 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 5. A United States District Court Judge or U.S. Court of Appeals Judge must follow the precedent of the United States Supreme Court. Question 6. If you were a Supreme Court Justice in 1856, what would you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393? Answer 6. It would only be speculation for me to comment upon what decision I would have made in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). I do not have the benefit of all briefs, arguments and deliberations of the associated justices available at the time of the decision. As an African American woman, I am thankful that I am a nominee to the United States District Court in this century. Question 7. 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. 7. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), has been abrogated by the Thirteenth and Fourteenth Amendment and is not binding precedent. Question 8. 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. 8. If I were a judge in 1957, I would be bound by my oath to follow the binding precedent of Dred Scott v. Sandford. Question 9. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 9. I could not speculate on what I would have done as a Supreme Court Justice in Plessy v. Ferguson, 163 U.S. 539 (1896). without having all the information, briefs and exhibits and deliberations of other justices available at the time of the decision. Question 10. 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 10. Plessy v. Ferguson, 163 U.S. 539 (1896), has been overruled and is not binding precedent. Question 11. 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 11. I cannot speculate on what I would have done as a Court Justice in 1954 in Brown v. Board of Education, 347 U.S. 489 without having all information, briefs, exhibits and deliberations of the associate justices available at the time of the decision. Question 12. 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 12. The precedent set by Brown v. Board of Education, 347 U.S. 483 (1954), has not been overruled and is the law to be followed by the courts today in any applicable cases. Question 13. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer 13. It would only be speculation to comment upon what I would have held in Roe v. Wade, 410 U.S. 113 (1973), without the benefit of all information, briefs, exhibits and deliberations of associate justices in the case. Question 14. In Roe v. Wade, 419 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 14. As a United States District Court Judge I would be obliged to follow the holding of Roe v. Wade, as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Question 15. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 15. I have no personal view of abortion which would interfere with my following the Supreme Court precedent and precedent of Court of Appeals for the Third Circuit. Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 16. I have no personal view of the death penalty which would interfere with my following Supreme Court precedent which has established the death penalty is constitutional. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 17. I have no personal view which would interfere with my following the precedent of higher courts interpreting the Second Amendment to the Constitution. Question 18. 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 18. I have no personal view regarding the balancing of these rights, and would follow the Supreme Court precedent of Planned Parenthood v. Casey, 505 U.S. 833 (1992), and any other applicable precedent of Supreme Court and Court of Appeals for the Third Circuit. Question 19. 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 19. I have no personal opinion about this issue that would interfere with may responsibility to follow Supreme Court precedent and the precedent of the Court of Appeals for the Third Circuit. Question 20. Do you believe that the death penalty is Constitutional? Answer 20. Yes, the United States Supreme Court has so held. Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the Court? Answer 21. I cannot speculate on the circumstances under which I would vote to overrule a precedent of the Court if I were a Supreme Court Justice, but I would follow the Court's precedent on this issue. Recognizing the importance of stare decisis, the Supreme Court has delineated the following factors as relevant to this issue: whether the rule has proved to be impractical in workability; what are the respective costs of reaffirming and overruling the prior case; whether related principles of law have so far developed that the old doctrine is ineffective; and whether the facts have so changed that the old rule is no longer significant or justified. Question 22. 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 22. In matters of statutory interpretation, a statute is given the presumption of constitutionality. The rules of statutory construction require that the Court look to the plain language of the statute. If there is some ambiguity, it may be necessary to look further to legislative intent. While it may be difficult to ascertain legislative intent committee reports may be helpful but statements of individual legislators should be viewed with caution as they may not reflect the views of a legislative body. ______ Responses of Petrese B. Tucker 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 to disagree 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 Courts struck down the Religious Freedom Restoration Act. --------------------------------------------------------------------------- \1\ 521 U.S. 507 (1997). --------------------------------------------------------------------------- Answer 2. If fortunate to be confirmed as a United States District Court Judge, I am committed to following decisions of the Supreme Court and the Court of Appeals, not any personal view I might have on an issue. 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 precedent of higher courts on 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 have no legal or moral beliefs which would prevent me from imposing or upholding a death sentence in an applicable 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. Delays of more than 10 years seem excessive, but policy decisions, including the process for appeals regarding capital punishment are appropriately made by Congress or State Legislatures, not the Courts. The federal courts have the responsibility to resolve capital cases fairly and expeditiously consistent with established precedent. 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. It is the responsibility of a Federal judge to apply the plain language and meaning of the Constitution and the laws of the United States, legal precedent of the United States Supreme Court and United States Court of Appeals construing them, and if necessary, legislative history. Reliance on these authorities is consistent with the limited jurisdiction of the federal court in our Constitutional system of separation of powers. It would be my responsibility in resolving the matters which would come before me to apply the established precedent under the Constitution and Laws of the United States. 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. Under the limited judicial power established by Article III of the Constitution, it is legitimate for courts to look to the plain meaning of the text and the original intent of the Framers of the Constitution, and, other amendments. In considering claims of constitutional rights courts must look to precedent interpreting the constitutional provision at issue. If Justice Brennan meant by discernment of the ``community interpretation'' of the constitutional text, that such an assessment of communities views is committed to the courts and not to the political branches, then that approach is not legitimate under our system of separation of powers. The Constitution does, however, expressly provide a legitimate avenue for establishment of new constitutional rights through the ratification of an amendment under Article V of the Constitution. Question 8. How would you, if confirmed, analyze a challenge to the constitutionally of a statue in a case that was not one of first impression? In a case of first impression? Answer 8. If fortunate to be confirmed as a United States District Court Judge and faced with a challenge to the constitutionality of a statute, I would be bound by the presumption of constitutionality and any and all precedent established in the Circuit in which I was sitting and by the United States Supreme Court. In cases of first impression, I would first look to the plain language of the Constitution, the statute and analogous precedent, and if necessary, legislative history. 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 invalidated a Connecticut law restricting access to birth control on the basis of a ``right to privacy'' that the court found to exist in the ``penumbras'' of the plain text of the Constitution. The Supreme Court in Alden v. Maine, 119 S. Ct. 2240 (1999), held that State Sovereign Immunity extends beyond that conferred by the Eleventh Amendment, and barred lawsuits against a State in State court without consent to suit. The Supreme Court in both cases looked beyond the Constitutional text in resolving the issues presented. As a United States District Court Judge however, I would be compelled to follow these precedents and any other precedents of the higher 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 Congresses'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. These two cases illustrate the Supreme Court's interpretation of the Commerce Clause in different contexts. In Wickard v. Filburn, 514 U.S. 111 (1942), the Supreme Court upheld a federal law that prevented individual farmers from growing more than the pre- determined amount of wheat because that over production 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 Zone Act as not having a sufficient effect on interstate commerce. Wickard appears to expand Congress's power to legislate on matters also regulated by the states. 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 each of these cases the Supreme Court has addressed the division of power between the national and the state governments under the United States Constitution. In United States v. Lopez, 514 U.S. 549 (1995), the federal Gun-free School Zone Act was struck down as not having a sufficient effect on interstate commerce. The Supreme Court in Printz v. United States, 521 U.S. 898 (1997), held that Congress was without authority to ``commandeer'' a States' executive officer to run background checks on prospective gun buyers under the Brady Handgun Violence Prevention Act. In both Printz and Lopez the Supreme Court held that federal legislation exceeded the power of Congress. In Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme Court applied the doctrine of sovereign immunity underlying the Eleventh Amendment to prohibit lawsuits against a nominating State in State Court. In both Baker v. Carr, 369 U.S. 186 (1962), and Shaw v. Reno, 519 U.S. 630 (1993), the Supreme Court held that a Federal District Court could hear an action alleging that a state reapportionment statute violated the Equal Protection Clause of the United States Constitution. While Lopez, Printz, and Alden appear to preserve state power as against national power. Baker and Shaw established a federal judicial role in reviewing state exercise of power as that power effects individuals in state reapportionment 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, the federal district courts do not have the institutional expertise to set rules for and oversee the administration of prisons, schools or state agencies. Question 13. Would it be appropriate for a court to hold unconstitutional a statute which existed before and after the ratification of a constitutional amendment, based on an interpretation of that amendment which creates an implied right conflicting with the preexisting statute? Answer 13. As a United States District Court Judge, I would begin any statutory analysis with the presumption that the statute was constitutional. It would be appropriate to look to the plain language of the new amendment. If some ambiguity still existed, I would look to the legislative debates for legislative history on the matter. However, if a higher court had interpreted the preexisting statute and resolved any conflicts with the new amendment, I would be compelled to follow the precedent established by the higher court. ______ Responses of Petrese B. Tucker 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 federal courts are a separate and distinct branch of government under the Constitution. The jurisdiction of the Federal court is to apply the Constitution, the laws that have been enacted by Congress, and precedent in the context of ``cases and controversies.'' It is not the court's function to act in response to various social problems where the legislature has not acted on an important 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. I have no personal objections to the death penalty which would interfere with my responsibility in an applicable case 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. As a state trial judge, I have imposed mandatory minimum criminal sentences pursuant to the Pennsylvania statutes. I would have no reluctance to impose or uphold mandatory minimum criminal sentences as a United States District Court 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. I understand the Federal Sentencing Guidelines are mandatory and, if fortunate enough to be confirmed as a United States District Court Judge, I will follow those guidelines. __________ Responses of James J. Brady to Questions From Senator Thurmond Question 1. Mr. Brady, you have long been active in partisan politics. What would be your policy regarding recusal in cases involving partisan litigants? Answer 1. I would strictly adhere to the letter and the spirit of the ethical guidelines set forth in the Code of Conduct for United States Judges and the statutory provisions relating to disqualification and recusal, including Canon 3.C of the Code of Conduct requiring recusal in all cases in which a judge's impartiality might reasonably be questioned. Question 2. 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 2. I do not subscribe to the view that the courts should act in response to various social problems even when the legislature has not acted. Question 3. 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 3. No, I do not have any personal objections to the death penalty that would cause me to be reluctant to impose or uphold a death sentence in the appropriate case. Question 4. 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 4. Congress has enacted such sentences and I would impose them without any reluctance. Question 5. 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 5. Congress has enacted such guidelines as striking the appropriate balance between consistency and flexibility. If I were fortunate enough to be confirmed as a district judge, I would follow the Sentencing Guidelines without any reservations. ______ Responses of James J. Brady 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. I cannot properly answer this question with a yes or no answer. There are questions about Constitutional issues that may be answered and some that cannot be answered consistent with the Code of Conduct for United States judges. Any question that might be understood to call for a nominee to prejudge a matter that might come before that nominee as a sitting judge would be problematic, as the Code of Conduct prohibits advisory opinions. 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 believe that there are many means of determining the fitness of a nominee, including the way that a nominee responds to the questions of the United States Senate. I believe that nominees should respond to questions regarding Constitutional issues, so long as responding to these questions does not conflict with the Code of Conduct or appear to be an indication that the nominee may have prejudged a matter. 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 is to assist the United States Senate in fulfilling its constitutional role of ``advice and consent.'' Question 4. Are there any questions that you feel are off limits for a Senator to ask? Answer 4. No. However, there are some questions to which a judicial nominee may not be able to respond in full, because of the dictates of the Code of Conduct for United States judges. Question 5. 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 5. No. There are no circumstances under which a United States District Court Judge or United States Court of Appeals Judge may refuse to apply Supreme Court precedent to the case before him or her. Question 6. If you were a Supreme Court Justice in 1856, what would you have held in Dred Scott v. Sanford, 60 U.S. (19 How.) 393? Answer 6. I cannot speculate how I, as a Supreme Court Justice, would have voted in the Dred Scott, case in 1856. I do not know what the record contained, nor can I place myself in a role of a judge presiding over a case more than a century ago. I do know that the Dred Scott case is not good law today. Question 7. In Dred Scott v. Sanford, 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 7. Dred, Scott v. Sanford is not precedent to be followed by the courts of today, as a result of the adoption of the Thirteenth and Fourteenth Amendments to the United States Constitution. Question 8. 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. Sanford, 60 U.S. (19 How.) 393 (1856)? Answer 8. Yes, I would have been bound to follow this binding precedent. Question 9. If you were a Supreme Court Justice in 1896, what would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)? Answer 9. I cannot speculate how I, as a Supreme Court Justice, would have voted in the Plessy v. Ferguson case in 1896. I do not know what the record contained, nor can I place myself in a role of a judge presiding over a case approximately a century ago. I do know that the Plessy v. Ferguson case is not good law today. Question 10. 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. Howe should that precedent be treated by the Courts? Answer 10. Plessy v. Ferguson is not a precedent for today's court. It was overruled by Bown v. Board of Eduction (347 U.S. 483) in 1954. Question 11. If you were a Supreme Court Justice in 1954, what would you have held in Bown v. Board of Education, 347 U.S. 483 (1954)? Answer 11. I cannot speculate how I, as a Supreme Court Justice, would have voted in the Brown v. Board of Education case in 1954. I do not know what the record contained, nor can I place myself in a role of a judge presiding over a case decades ago. I do know that the Brown v. Board of Education case remains binding precedent today. Question 12. 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 12. As a district court judge, I would be required to follow the holding of the United States Supreme Court in Brown v. Board of Education. Question 13. If you were a Supreme Court Justice in 1973, what would you have held in Roe v. Wade, 410 U.S. 113 (1973)? Answer 13. I cannot speculate how I, as a Supreme Court Justice, would have voted in the Roe v. Wade case in 1973. I do not know what the record contained, nor can I place myself in a role of a judge presiding over a case decades ago. I do know that Roe v. Wade, as amended by Planned Parenthood v. Casey, 505 U.S. 833 (1992), remains binding precedent today. Question 14. 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 Rehnquist dissent in that case? Answer 14. As a district court judge, I would be required to follow the precedent as decided by the United States Supreme Court. I would not be permitted to adopt a dissent in this or any case as a precedent. As a district court judge, whether I agree or disagree with a holding or a dissent in a case decided by the United States Supreme Court, I must and will follow the prevailing precedent regardless of my personal view. Question 15. We understand the Supreme Court precedent, but what is your personal view on the issue of abortion? Answer 15. I do not have any personal view regarding abortion that would prevent me from following Supreme Court precedent in this area. The current Supreme Court precedent on this issue is set forth in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Question 16. We understand the Supreme Court precedent, but what is your personal view on the issue of the death penalty? Answer 16. The United States Constitution provides for the imposition of the death penalty, and the United States Supreme Court has upheld the death penalty on numerous occasions. I have no reservations or reluctance in following the Constitution and the holdings of the Supreme Court. Question 17. We understand the Supreme Court precedent, but what is your personal view on the issue of the Second Amendment to the Constitution? Answer 17. The Second Amendment provides: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. I will follow this amendment and any and all precedent of the United States Supreme Court and the Fifth Circuit on this matter, without regard to any personal view I may have. Question 18. 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 18. As a district court judge, I would follow the holdings of the United States Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992), regardless of any personal view I may have. Question 19. 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 19. As a district court judge, any personal views I may have cannot play a role. I will follow the precedent of the United States Supreme Court and of the United States Court of Appeals for the Fifth Circuit. Question 20. Do you believe that the death penalty is Constitutional? Answer 20. Yes. The United States Supreme Court has clearly held that the death penalty is Constitutional, and as a district court judge, I would follow the precedent. Question 21. If you were a Supreme Court Justice, under what circumstances would you vote to overrule a precedent of the court? Answer 21. If I were a Supreme Court justice, I would follow the Supreme Court guidance on this issue. Planned Parenthood v. Casey (505 U.S. 383 (1992)) and other cases give guidance setting forth the rare circumstances under which the United States Supreme Court may overrule one of its precedents. Question 22. Do you consider legislative intent and the testimony of elected officials in debates leading up to passage of an act? And what weight to you give legislative intent? Answer 22. Interpreting a statute, the court's analysis should begin, and frequently end, with the language of the statute. Only if the language of the statute is ambiguous can a court consider legislative intent. Legislative history should always be viewed with caution, and official committee reports should be afforded greater weight than the individual testimony of elected officials. Quesiton 23. On September 3, 1995, it was reported in the Advocate of Baton Rouge, Louisiana, that, ``the FBI is looking into the Louisiana Democratic Party's campaign finance activities in connection with the federal probe of alleged corrupt gambling influence on the Louisiana legislature. The FBI probe has alleged that state Sen. Larry Bankston, D-Port Hudson, laundered contributions from gambling interest through the Louisiana Democratic Party.'' You were the Chairman of the Democratic Party during that controversy. What was the ultimate resolution of the controversy? Answer 23. No action was ever taken by any law enforcement agency or other entity against the Louisiana Democratic party, its officers or employees. The Louisiana Democratic Party was served with a subpoena from a federal grand jury requesting certain documents. At my direction, the Party responded fully to the subpoena and cooperated fully with the United States Attorney's office in the response. I was never questioned by an investigative entity regarding this matter. To the best of my knowledge, once the response to the subpoena was made, no one connected with the party ever heard any more from the F.B.I., the Grand Jury, or the U.S. Attorney's office about this matter. To my knowledge, none of the documents provided to the Grand Jury by the party were ever used in the indictment of anyone, nor were they ever used in any trial or other proceeding. Question 24. In 1995 in the Baton Rouge Advocate you discussed the Oklahoma City bombing and stated the following: ``There are those who seek to divide us by blaming (or at least implying blame for) this tragedy on law enforcement agencies. This is a preposterous thought that fuels organizations led by right-wing extremists, whose mission is to encourage hatred and promote violence in our society. And it encourages Republicans to keep these extremists in their fold.'' What did you mean by this and do you still subscribe to this philosophy? Answer 24. These statements are excerpted from a letter to the editor submitted in the aftermath of the Oklahoma City bombing. I was outraged that some individuals had made statements attempting to lay the blame for the Oklahoma City bombing on law enforcement agencies. My intent in submitting the letter to the newspaper was to support our law enforcement agents, many of whom lost their lives in the Oklahoma City tragedy. In retrospect, my language was unclear, especially to the extent my statements could be read to suggest that this abhorrent view--that law enforcement was to blame for the bombing--was shared by mainstream Republicans. I certainly do not and did not attribute this sentiment to Republicans. To the contrary, the entire nation joined together in mourning this tragedy. Question 25. Judges are supposed to project an image of being impartial. You held an officer's position with the Democratic Party of Louisiana since 1974. Do you think that being a chairman of a state political party gives the perception that you are a partisan and too political a nominee for the federal bench? Answer 25. No. I would note that my position with the Democratic Party is just one component of my life experience. For more than thirty years I have been a lawyer representing many different clients, including Republican elected officials. As a judge, I would take my oath to be impartial very seriously. Although I can understand that others might be concerned about the impression created by one who held pastpositions in a political party, this impression has been overcome successfully by others who have served on the bench. I certainly do not believe that my party affiliation or past party position should disqualify me from the federal bench. Question 26. Would you recuse yourself from any cases involving either the Republican or Democratic party? Answer 26. If confirmed, I would strictly adhere to the letter and the spirit of the ethical guidelines set forth in the Code of Conduct for United States Judges and the statutory provisions relating to disqualification and recusal, including Canon 3.C of the Code of Conduct requiring recusal in all cases in which a judge's impartiality might reasonably be questioned. ______ Responses of James J. Brady 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 fully committed to following the precedents of higher courts faithfully and giving them full force and effect, even if I personally disagree with any 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). --------------------------------------------------------------------------- Answer 2. I would apply any decision of the Supreme Court and of the Fifth Circuit Court of Appeals. 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 feelings I may have on the matter. 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 10, 15, or even 20-year delays between conviction of a capital offender and execution are too long. I believe that the federal courts should resolve capital cases fairly and expeditiously in accordance with the law, the decisions of the United States Supreme Court and the Circuit Court of Appeals. 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. I believe that a federal district court judge should look to the plain language of the constitutional provision or statute; the decisions of the United States Supreme Court and of the Circuit Court of Appeals touching on the statute or provision; and in some rare instances, legislative history reflecting the intent of the drafters of the statute or constitutional provision. 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. The plain language of the United States Constitution is a legitimate approach and should be the starting point. Original intent is a legitimate source if the original intent can be specifically and clearly determined, but should not outweigh the plain language. ``[C]ommunity's interpretation'' is not a legitimate source. Ratification of an amendment is a legitimate approach and is the one method that the Constitution clearly provides for the adoption of any right. The first approach would be consistent with the judicial power established under Article III of the Constitution, and would constrain the powers of the courts. The second approach would greatly enhance the power of the courts in a manner not envisioned by Article III. The third approach is set forth in the Constitution as the appropriate method for amending the Constitution. Question 8. How would you, if confirmed, analyze a challenge to the constitutionality of a statute in case that was not one of first impression? In a case of first impression? Answer 8. Should such a statute come before me as a district court judge, I would afford it the presumption of constitutionality. If a challenge to the statute had been brought before, I would be governed by the decisions affecting it rendered by the United States Supreme Court or United States Court of Appeals for the Fifth Circuit, and I would hold consistent with those decisions. If it were a case of first impression, I would look to the plain language of the statute; seek any analogous precedents in similar areas of the law that may give an indication as to how the United States Supreme Court or the United States Court of Appeals for the Fifth Circuit would rule on the issue and apply that ruling. In some limited instances, I would look to the intent of the legislative body which enacted 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? Answer 9. Griswold v. Connecticut, 381 U.S. 479 (1965). According to the United States Supreme Court, the sources of law and the method used in Griswold v. Connecticut, 381 U.S. 479 (1965) were ``. . . that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance: various guarantees create zones of privacy.'' B. Alden v. Maine, 119 S. Ct. 2240 (1999). In Alden v. Maine, 119 S. Ct. 2240 (1999), the court reached its decision on ``the Constitution's structure and its history, [which] made it clear [that] the state's immunity from suit is a fundamental aspect of the sovereignty which states enjoyed before ratification of the Constitution, and which they retain today.'' Critics have noted that, in these cases, the Supreme Court looked beyond the plain language of the Constitution in rendering its decisions. Question 10. Compare the following cases with respect to the 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. Answer 10. A. Wickard v. Filburn, 317 U.S. 111 (1942). In Wickard v. Filburn, 317 U.S. 111 (1942), the item in question, wheat, was not ``in commerce'' but was being utilized for the owner's own use. The court found that regardless of the seemingly small impact which the grower's activities might have had on interstate commerce, it was this grower's action, taken together with thousands of other like growers, that would substantially affect interstate commerce, and therefore the seemingly trivial activity of one wheat grower could be regulated. B. United States v. Lopez, 514 U.S. 549 (1995). In United States v. Lopez, 514 U.S. 549 (1995), the court found that there was no basis for Congress to enact the Gun-Free Zones Act of 1990 under the commerce clause of the Constitution. The majority opinion quotes the Framers of the Constitution and requires that the effect of the regulated activity on interstate commerce must be substantial and in this case, found it not to be so. Wickard would require that courts uphold statutes that have a minimal effect, if any, on interstate commerce. If it is shown that the cumulative effects of the regulated activity could impact interstate commerce, this would enhance the power of Congress. The Lopez case, on the other hand, would require that the courts find that the activity sought to be regulated must have a substantial effect on interstate commerce, particularly if the activity sought to be regulated is not a commercial one. The holding of Lopez, therefore, constrains the powers of the courts and of Congress. Wickard would place more power in the federal government and less in the state, whereas Lopez would have the reverse effect. 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. Answer 11. A. United States v. Lopes, 514 U.S. 549 (1995). Lopez restricts the power of the federal government by limiting the use of the commerce power by Congress. The holding in this case would seemingly reserve the activity Congress sought to regulate to the state. B. Printz v. United States, 521 U.S. 898 (1997). In this case, the Supreme Court decided the issue of whether or not the Congress can ``force the participation of the states' executive in the actual administration of a federal program . . .'' The court held that Congress could not. This case restricts the power of the Congress, thus reserving the sovereignty of the states to be free from such federal dictates. C. Alden v. Maine, 119 S. Ct. 2240 (1999). The United States Supreme Court in this case held that Congress, in the exercising of its powers under Article I of the Constitution, cannot abrogate the sovereign immunity of a state in lawsuits by citizens of that state where the state has not consented to such suits. The court held that such immunity ``. . . is a fundamental aspect of the sovereignty which the states enjoyed before the ratification of the Constitution, and which they retain today.'' This case diminishes the power of the federal government and enhances the power of the state. D. Baker v. Carr, 369 U.S. 186 (1962). By determining that a challenge to a state apportionment plan is not a ``political question'' and is ``justiciable,'' the United States Supreme Court determined in this decision that such an apportionment plan must comply with the Fourteenth Amendment's equal protection clause. This decision, therefore, enhanced the power of the federal system in that federal courts could hear challenges to such acts and to consider their compliance with the Fourteenth Amendment. This lessens the impact that a state has in determining the manner in which it may wish to apportion its legislature and enhances the power of the court to review such decisions. E. Shaw v. Reno, 509 U.S. 630 (1993). In this case, the Court held that a challenge to a state congressional apportionment plan which appeared to be race-neutral on its face, but which could not rationally be understood as anything other than an effort to separate voters on the basis of race, can be challenged under the equal protection clause of the Fourteenth Amendment and must withstand the strict scrutiny test. This case enhances the power of the federal government (the courts) by authorizing such challenges to state enactments. This limits the power of the states to act in such areas. 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. Would it be appropriate for a court to hold unconstitutional a statute which existed before and after the ratification of a constitutional amendment, based on an interpretation of that amendment which creates an implied right conflicting with the preexisting statute? Answer 13. If I were presented with this unusual set of circumstances in an actual case or controversy, I would look to the text of the Constitution and any Supreme Court and Fifth Circuit case law. If the text of a constitutional amendment were to conflict with the statute, the text of the amendment would take precedence.