[Senate Hearing 107-415]
[From the U.S. Government Publishing Office]
S. Hrg. 107-415
CONFIRMATION HEARING ON THE NOMINATIONS OF RALPH F. BOYD, JR. AND
ROBERT D. McCALLUM, JR. TO BE ASSISTANT ATTORNEYS GENERAL
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
MAY 23, 2001
__________
Serial No. J-107-22A
__________
Printed for the use of the Committee on the Judiciary
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78-818 WASHINGTON : 2002
_____________________________________________________________________________
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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
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
Sharon Prost, Chief Counsel
Makan Delrahim, Staff Director
Bruce Cohen, Minority Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 133
PRESENTERS
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts presenting Ralph F. Boyd, Jr., Nominee to be
Assistant Attorney General for the Civil Rights Division....... 2
Tierney, Hon. John F., a Representative in Congress from the
State of Massachusetts presenting Ralph F. Boyd, Jr., Nominee
to be Assistant Attorney General for the Civil Rights Division. 4
STATEMENTS OF THE NOMINEES
Boyd, Ralph F., Jr., of Massachusetts, Nominee to be Assistant
Attorney General for the Civil Rights Division................. 6
Questionnaire................................................ 10
McCallum, Robert D., Jr., of Georgia, Nominee to be Assistant
Attorney General for the Civil Division........................ 80
Questionnaire................................................ 83
QUESTIONS AND ANSWERS
Responses of Ralph F. Boyd, Jr. to questions submitted by
Senators Leahy, Kennedy, Biden, Feingold, Schumer and Durbin... 137
SUBMISSION FOR THE RECORD
Cleland, Hon. Max and Miller, Hon. Zell, U.S. Senators from the
State of Georgia, joint statement in support of Robert D.
McCallum, Jr., Nominee to be Assistant Attorney General for the
Civil Division................................................. 3
CONFIRMATION HEARING ON THE NOMINATIONS OF RALPH F. BOYD, JR. AND
ROBERT D. McCALLUM, JR. TO BE ASSISTANT ATTORNEYS GENERAL
----------
WEDNESDAY, MAY 23, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:17 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Leahy, and Kennedy.
OPENING STATMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. We are happy to welcome everybody out this
morning, and today the Committee will consider the nominations
of Ralph Boyd to be Assistant Attorney General for the Civil
Rights Division, and Robert McCallum to be Assistant Attorney
General for the Civil Division.
Now, before we begin, I have to note that during our last
confirmation hearing, Senator Specter observed that both
nominees were Harvard graduates, and bemoaned the lack of Yale
representation, even went so far as to suggest a Harvard
conspiracy at work here. So I am sure he will be very
disappointed to see Mr. Boyd, another Harvard Law graduate,
before the Committee, but I hope he can take some solace from
the fact that Mr. McCallum attended Yale, both as an
undergraduate and as a law student.
There is a lot I have to say about these positions that are
important. I will put the rest of my remarks in the record.
These are important positions. We are happy to have both of
these really fine gentlemen here before us. Mr. Boyd is no
stranger to legal complexity, and we are very pleased to have
him here, and the same with Mr. McCallum. He has had extensive
experience. He will be a perfect person for, I think, the Civil
Division, and Mr. Boyd for the Civil Rights Division.
I am honored to have Senator Kennedy here to introduce Mr.
Boyd. I apologize to him personally for the mixup in getting
over here a little late, and so I will turn the time to him so
he can make that introduction.
[The prepared statement of Senator Hatch follows:]
Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State of Utah
Good morning. Today, the Committee will consider the nominations of
Robert Boyd to be Assistant Attorney General for the Civil Rights
Division, and Robert McCallum to be Assistant Attorney General for the
Civil Division.
Before we begin, I must note that during our last confirmation
hearing, Senator Spector observed that both nominees were Harvard
graduates, and bemoaned the lack of Yale representation. He even went
so far as to suggest a Harvard conspiracy at work here. So I am sure he
will be very disappointed to see Mr. Boyd, another Harvard Law
graduate, before the Committee. But I hope he can take some solace in
the fact that Mr. McCallum attended Yale both as an undergraduate and
as a law student.
The position of Assistant Attorney General for Civil Rights is one
of the most important law enforcement positions in the Federal
Government. Perhaps no position more profoundly shapes and implements
our Nation's goal of equality under law. The Civil Rights Division was
established in 1957 to enforce President Eisenhower's Civil Rights Act
of 1957, the first civil firm, Goodwin Proctor LLP, Mr. Boyd has
maintained a broadbased litigation practice. Mr. Boyd's extracurricular
commitments are also significant. He has spent a considerable amount of
time speaking to ``at risk'' youth and to community and religious
groups about reducing violence. He has also addressed various lawyers'
groups on topics including racial diversity and the importance of
mentoring. I commend you, Mr. Boyd, for your impressive record, and I
commend President Bush for exercising excellent judgment in selecting
you for this important position.
Turning to Mr. McCallum's nomination, the person who fills the
position of Assistant Attorney General for the Civil Division leads the
largest litigating division at the Department of Justice. Its attorneys
represent not only the United States, its departments, and agencies,
but also federal employees, including cabinet officers and even members
of Congress - a fact that we all may want to keep in mind during the
course of this hearing. Civil Division attorneys enforce and defend
such diverse matters as national security issues; contract disputes and
other commercial claims; customs and international trade; federal
benefits programs; patents and other intellectual property rights;
civil fraud actions; tort claims; and violations of the immigration and
consumer protection laws. The outcome of such litigation often has
significant consequences for the taxpayers, since it involves billions
of dollars in claims and recoveries annually. The position of Assistant
Attorney General for the Civil Division must therefore be filled by a
person who has demonstrated the capacity to expertly handle the most
complex legal matters when the stakes are the highest.
Mr. McCallum fits this description perfectly. His matriculation at
Yale was the first step in what has proved to be an exemplary legal
career. In the course of his nearly thirty years in private practice,
he has expertly litigated a wide range of complex matters, including
commercial cases, class actions, RICO claims, health care fraud cases,
and appeals. For almost ten years, he served as Special Assistant
Attorney General for the State of Georgia, handling eminent domain
matters. His vast and well-rounded experience, coupled with his keen
intellect, meet the rigorous requirements for the job of Assistant
Attorney General for the Civil Division. I have no doubt that he will
be able to execute his duties skillfully and professionally. Again, I
commend President Bush on his wise selection of Mr. McCallum for this
position.
It is a great pleasure to welcome both of you to this Committee.
PRESENTATION OF RALPH F. BOYD, JR., NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVISION BY HON. EDWARD
M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman, and we
all understand the Senate schedule makes it A complicated day.
And I see my good friends, Congressman Tierney and
Congressman Neal, who are here as well.
I first of all want to thank you for having the hearings,
and I am very hopeful that we can move this process forward
very expeditiously, because I think it is important,
particularly in the area of the Civil Rights Division, that we
have someone in there of Ralph Boyd's competency and
leadership.
It is a very important position. I congratulate Attorney
General Ashcroft for this selection. I congratulate Ralph Boyd
for his willingness to take on this responsibility. He brings
to this position a superb education at Haverford and Harvard
Law School, where he was an outstanding student. He has
demonstrated his commitment to public service by having clerked
for a District Court Judge, and did it with great distinction.
And he later served in the US Attorney's Office, and was known
there as a tough prosecutor, but fair, and he had an
outstanding record there. Now he is a very successful member of
Goodwin, Procter & Hoar, one of the very fine law firms in
Boston, where he is highly regarded and respected.
I see members of his family that are here today. I know
that his wife, Angela Dawn Johnson, and their five children,
Caitlin, Jessica, Magdelene, Jamie and Jeremy are not here. I
think we can guess where they are, in school today, but we want
them to know that they are very much in our minds. And I know
he will introduce his father and mother and two cousins who are
here. We welcome them to the Committee.
Just finally, Mr. Chairman, I am enormously impressed by
Ralph Boyd's commitment to young people in a very special way.
He serves at-risk youth in Boston. He works as well with a
stay-in-school program there to try and help young people. He
is very active in the mentoring of young people as well, and he
has worked with young people that have been involved in the
judicial court system. So he has, I think, reflected in his own
life a strong commitment to equal justice under the law, to
fairness, and to making sure that his life, both by example and
commitment, is one that understood the importance of
opportunity for all of our citizens and for the respect of all
of our citizens. He is truly an extraordinary individual, and I
think the Justice Department will be fortunate to have him. And
I commend, as I said, the Attorney General and the President
for the nomination, and I hope he will be approved very
quickly.
[The prepared statement of Senators Cleland and Miller
follows:]
Joint Statement of Hon. Max Cleland and Hon. Zell Miller, U.S. Senators
from the State of Georgia
Mr. Chairman, we are here to present Mr. Robert D. McCallum, Jr. to
the Senate Judiciary Committee as the President's nominee to be
Assistant Attorney General for the Civil Division. Mr McCallum comes
highly recommended from several of his colleagues for whom we both have
a great deal of respect. It is our pleasure to present him today as a
fellow Georgian with impressive credentials and support from many in
our state.
Mr. McCallum received his undergraduate degree, cum laude, in
History from Yale University in 1968. He also attended Oxford
University as a Rhodes Scholar and graduated from Yale Law School in
1973. Immediately following law school, Mr. McCallum joined the law
firm of Alston, Miller & Gaines, the predecessor firm to Alston & Bird,
as an associate in 1973. He is currently a partner in the law firm of
Alston & Bird where his specialty is civil litigation with emphasis on
appellate practice, commercial real estate litigation, insurance class
action litigation and administrative proceedings, and medical
malpractice defense. He has written several journal articles in the
Mercer Law Review and he wrote a chapter in Gynecological Surgery. Mr.
McCallum has also lectured regarding eminent domain law and evidence at
Georgia seminars and at the 1992 American
Mr. McCallum is a member of the State Bar of Georgia, the Atlanta
Bar Association and the American Bar Association. He is also a member
of the Yale Club of Georgia, the Yale Alumni Fund, the Brookwood Hills
Civic Association, Butler Street YMCA, and the Rhodes Scholarship
Trust. Mr. McCallum is also a member of several civic and cultural
organizations such as the High Museum of Art, the Wilderness Society,
the Atlanta History Center, and Atlanta Preservation Center. He is also
the Georgia Representative to the Yale Law School Alumni Association
Board.
Mr. McCallum is an excellent attorney and will be a great addition
to the Justice Department as an Assistant Attorney General. Therefore,
we recommend Mr. Robert McCallum to the Committee and the United States
Senate and urge that he be promptly confirmed. Thank you.
Chairman Hatch. Well, thank you, Senator Kennedy. And that
is about as high a recommendation as I have heard around here
in a long time, and I feel exactly the same. And coming from
Senator Kennedy, former Chairman of this Committee in the good
old days----
Senator Kennedy. Soon to return.
[Laughter.]
Senator Kennedy. It just slipped out, Mr. Chairman.
Chairman Hatch. You mean you are going to come back as
chairman?
[Laughter.]
Chairman Hatch. But that is very, very high praise for you,
Mr. Boyd.
Congressman Tierney is here. We are really happy to have
you here, coming over to back Mr. Boyd. We appreciate you.
Would you care to make any statement? We would be very happy to
take your statement at this time.
PRESENTATION OF RALPH F. BOYD, JR., NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVISION BY HON. JOHN F.
TIERNEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
MASSACHUSETTS
Representative Tierney. Thank you, Senator. I really do not
have a long statement to make. I think Senator Kennedy said it
all very well, and I would not even want to try to compete with
that, except to say that I have had the opportunity to meet and
know Ralph Boyd now, and that we are sure that he is going to
make a good representative of our community and of the country,
and that all of the things that Senator Kennedy said about him
being concerned about individuals and having respect for
individuals is absolutely true. We are very supportive of
Ralph's nomination, and we do hope that the Senate gives him a
speedy confirmation. And we thank you for your hearing here
today.
Chairman Hatch. Well, thank you so much, and thanks for
taking the time, and I am sure Mr. Boyd appreciates it as well
as I do.
I have to say it is fortunate for the Committee that Mr.
Boyd is no stranger to legal complexity. He has an informed
perspective about civil rights in America today. He is an
excellent candidate to lead the Civil Rights Division.
He graduated from Harvard Law School where he was editor of
the Harvard Civil Rights Civil Liberties Law Review. As an
Assistant US Attorney in Boston, he investigated and prosecuted
bank fraud, firearms, homicide, narcotics trafficking, bombing
and bank robbery cases, as well as a couple of high-profile
gang violence cases. It sounds like they have a pretty rough
time up there in Boston.
[Laughter.]
Chairman Hatch. We do in all the other cities in the
country too, I am afraid.
He tried 15 to 20 jury trials, conducted 50 to 75
evidentiary hearings and argued approximately 10 appeals in the
First Circuit Court of Appeals. And now as a partner at the
prestigious law firm, Goodwin, Procter LLP, Mr. Boyd has
maintained a broad-based litigation practice.
Mr. Boyd's extracurricular commitments are also
significant, as Senator Kennedy, I think, carefully pointed
out. He has spent a considerable amount of time speaking to at-
risk youth, and to community and religious groups about
reducing violence. He has also addressed various lawyers'
groups on topics including racial diversity and the importance
of mentoring.
So I commend you, Mr. Boyd, for your reputation, for your
impressive record, and I commend President Bush for exercising
excellent judgment in selecting you for this important
position. And I hope that you will work with us, and look at
this new Prevention, Education and Treatment Bill that we have
filed here in the Committee. I think that could do a lot of
good. We are looking for alternatives to prison for some of our
young people, and also, naturally, we would like you to look at
a wide variety of other things that we are trying to do on the
Committee that I think are worthwhile.
Let me just say that Mr. McCallum is to fill the position
of Assistant Attorney General for the Civil Division, which
would lead the largest litigating division at the Department of
Justice.
The Civil Division's attorneys represent not only the
United States and its departments and agencies, but also
Federal employees, including cabinet officers and even Members
of Congress, a fact that we may all want to keep in mind during
the course of this hearing.
Civil Division attorneys enforce and defend such diverse
matters as national security issues, contract disputes and
other commercial claims, customs and international trade,
Federal benefits programs, patents and other intellectual
property rights, civil fraud actions, tort claims and
violations of immigration and consumer protection laws. The
outcome of such litigation often has significant consequences
for our country and to our taxpayers since this type of
litigation involves billions of dollars in claims and
recoveries annually.
The position of Assistant Attorney General for the Civil
Division must therefore be filled by a person who had
demonstrated the capacity to expertly handle the most complex
legal matters when the stakes are the highest.
Now, Mr. McCallum fits this description perfectly, as far
as I am concerned. His matriculation at Yale was the first step
in what proved to be an exemplary legal career. In the course
of his nearly 30 years in private practice, he has expertly
litigated a wide range of complex matters, including commercial
cases, class actions, RICO claims, health care fraud cases, and
appeals. For almost 10 years he served as Special Assistant
Attorney General for the State of Georgia, handling eminent
domain matters.
His vast and well-rounded experience, coupled with his keen
intellect, meet the rigorous requirements for the job of
Assistant Attorney General for the Civil Division, and I have
no doubt that he will be able to execute his duties skillfully
and professionally.
So, again, I commend President Bush for his good choice
here, and commend you for being chosen and for the great record
that you have. So it is a great pleasure to welcome both of you
to the Committee.
I wonder if we can get you both to take your chairs, or if
you will both stand, rather, and raise your right hands.
Do you solemnly swear to tell the truth, the whole truth
and nothing but the truth, so help you God?
Mr. Boyd. I do.
Mr. McCallum. I do.
Chairman Hatch. Thank you. Now we have a complication here.
This morning they are trying to finish up the tax bill, and
there may be four, five or six votes, and it is apparent that
other members of the Committee are stuck over on the floor
where I was. So what I am going to do is start this off with
both of you, and hopefully some of them will come. We may have
to recess till these votes are over. I hate to tell you that,
but hopefully, we can get this hearing completed today. I would
like to give our colleagues on the other side at least an
opportunity to ask questions to both of you.
Let's turn to you, Mr. Boyd. Do you have a statement you
care to make?
And then we will turn to you, Mr. McCallum.
STATEMENT OF RALPH F. BOYD, JR., OF MASSACHUSETTS, NOMINEE TO
BE ASSISTANT ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVISION
Mr. Boyd. I do, Mr. Chairman, and thank you. I wondered if
I might introduce my family members to you, as well as the
family members who are not present today.
Chairman Hatch. We would love to have you do that.
Mr. Boyd. And if I could start, Mr. Chairman, by talking
about those who are not able to be here today, starting with my
wife of almost 13 years, Angela, who wanted to be here today,
but has just returned to the East Coast from the Olympia area
in Washington State, attending to her family after the death of
her father 2 weeks ago.
Chairman Hatch. Sorry about that.
Mr. Boyd. And she would be here otherwise.
In addition, my five children, who--my wife, I should say,
is the architect of our family in many meaningful respects, and
she is the mother of our five children, who Senator Kennedy
noted also are not here. And if I could just introduce them by
name. My oldest child is Caitlin Elizabeth. She is 12-years-
old, and she along with my second daughter, Jessica, who is 10,
are back at the Ipswich Public Schools taking their MCAS
examinations today, which is a State examination in
Massachusetts, controversial to some, but the theory is that it
measures the command that students have of material and certain
subject matters, and so they are both facing an examination
probably as important to them today as I am. So they are back
in Boston with their mother and in school.
In addition, my remaining three children, Maggie, who is 5-
years-old, Jamie who is also 5-years-old, and Jeremy, who is 5-
years-old, just turned 5-years-old, they also are back in
Ipswich, Massachusetts, our home, and I just wanted to
introduce them to you because they are a very, very important
part of my universe, and I would love to have them here and
show them off to the Committee, but I cannot.
Chairman Hatch. We would love to have them here, but we
understand, and we know that you love your family, and we have
had some very nice chats in my office about that. We appreciate
the love you have for your family and the good example you set.
Mr. Boyd. Thank you, Senator. If I can introduce to you the
members of my family who are here, and the two people who got
the ball rolling 44 years ago, for better or for worse,
hopefully for better, if Senator Kennedy and you, Chairman
Hatch are to be believed, I think for the better. First is my
father, Ralph, Sr.
Chairman Hatch. Please stand if you will. We are honored to
have you here.
Mr. Boyd. And then is my mother, Catherine.
Chairman Hatch. Mom, we are glad to have you here as well.
Mr. Boyd. My cousin, Edward Pitts.
Chairman Hatch. Edward.
Mr. Boyd. And my other cousin, Melvin Jefferson.
Chairman Hatch. Melvin, good to have you, good to have you
all here.
Mr. Boyd. If I can proceed, I would like to make my
statement to the Committee.
I want to start out by thanking you, Chairman Hatch, and
Senator Kennedy for that gracious introduction, and I also want
to thank each and every member of this Committee. I am deeply
honored to be here, and I am grateful for the careful attention
that you have given my nomination, and also for having the
opportunity to answer questions you may have of me as President
Bush's nominee to be Assistant Attorney General for Civil
Rights.
As a former Assistant United States Attorney with proud
memories of my work in that office, as a counselor and advocate
on behalf of people who are struggling to realize the American
dream for themselves and their families, and also as a child
and a beneficiary of the civil rights movement, I can think of
no greater honor, no greater responsibility, and no greater
privilege than to be nominated by the President of the United
States to serve my family, my neighbors, my community, my
country and all of its people as the head of the Civil Rights
Division of the Department of Justice, that is to be, in
effect, the country's lawyer on matters of civil rights.
The Civil Rights Division was created in 1957, which
coincidentally was the year that I was born. That was a time of
meaningful shifts in how America viewed and addressed the
rights of its citizens. Since that time no single office has
played a more central role in advancing the core values we
Americans share, that people should not be singled out or
denied opportunities because of the color of their skin, where
they worship if they choose to worship at all, where they or
their parents came from, what gender they are, how old they
are, or whether they are challenged by some disability, and
also that no one should fear or fall victim to violence for any
reason, but certainly not because of some bias or prejudice
harbored against them simply because of who they are.
Our Congress has given us laws designed to protect these
core values. These laws advance the prospect of our achieving,
by working together, a truly inclusive democracy where no
person, and as President Bush has said, especially no child, is
left out or left behind. But without the Civil Rights
Division's vigorous implementation and enforcement of these
anti-discrimination laws, the high ideals of equality and
inclusion that we strive for would be chronically deferred and
never fully realized. Our laws would, in effect, amount to
empty promises.
If confirmed, I would strive to make the ideals of fairness
and equality of opportunity a reality for all of America's
people today, not in some vague distant tomorrow. We have been
given the tools. It falls to us to use them. And with the able
assistance of the dedicated and committed career lawyers of the
Civil Rights Division, I would seek to enforce our Civil Rights
laws like we mean it, in an unassailably fair, consistent and
evenhanded way.
Mr. Chairman, my nomination for this position has caused me
to consider my life's work and reflect on where I came from and
how I came to be here, and that isn't just because of the
lengthy questionnaire I had to fill out for this Committee.
As part of my work in the community, I often have the
opportunity to teach and mentor young people, as Senator
Kennedy pointed out, from middle schoolers, to law students, to
young lawyers. Some are start in the making. Others are at risk
for violence or face other serious obstacles to achieving
success. Regardless, as they mature and learn to tackle issues
and deal with matters of increasing importance, I remind each
of them that they must always remember who they are, where they
came from, and the people and the events that have helped shape
them. This advice applies equally to me. I can assure you, Mr.
Chairman, that I know where I come from and how I have come to
be in this place at this time, prepared to do the heavy lifting
required of the person who would serve in the position for
which the President has nominated me.
As a child, I grew up in NAACP meetings with my parents. I
knew then and I know now the reasons and the need for those
meetings and the work that flows from them. I also know that I
am, in significant part, the product of the work and commitment
of others, including courageous people I have never met, but
whose sacrifices I have benefited from. I also know that I am
the product of a loving family and of many generous friends,
teachers and mentors. No one gets to the place where I am today
without the imprint of others. I know this, and I am grateful
for it.
Some of these people are here today, and I introduced them
to you, my parents, Ralph, Sr. and Catherine. By their
presence, they continue the work they started 44 years ago,
teaching, nurturing and instilling values. There also have been
others who have opened doors for me and added to my learning,
from my youth to the time I spent at Haverford College, which
in many important respects was a life-changing experience for
me. Their efforts on my behalf continue today. These people,
almost to a person, have been reluctant to accept any thanks
for their role in my accomplishments. They simply ask that I
take the time and make the effort to do the same for others. I
have tried to honor these requests, Mr. Chairman, in both my
professional and personal life. In fact, being here today is
part of that effort. It is an opportunity to serve others by
protecting and vindicating the rights of those who struggle
with prejudice, unjustified rejection, and in some cases, even
hatred in their daily lives.
There are many challenges before us. Our great country
affords my five children many more opportunities than it did my
father and uncle when they returned from World War II, more
than half a century ago. These men and other men who fought and
literally bled for America, returned to a country that did not
welcome them or embrace them, in many instances simply because
of the color of their skin, but they still persevered and
worked doggedly to change America. They succeeded, and so I am
here today.
But there is still work to be done, Mr. Chairman. Our law
has shifted decisively to the side of individual civil rights,
but attitudes and hearts can change more slowly. Government and
law can lay the groundwork for healthy inclusive communities,
but the challenge of transforming legal promises into social
and economic reality depends largely on what each of us does as
an individual, both in and out of Government. As much progress
as we have made in America, we still have more work to do
before we can say that color, gender or other immutable traits,
or impertinent aspects of a person's life, no longer affect
that person's access to opportunities or their ability to
partake fully of the American experience without fear of
discrimination or violence.
The job of the Assistant Attorney General for Civil Rights
is to lead this effort through enforcement and by example.
Sometimes we are challenged, Mr. Chairman, in this effort by
our differing views and beliefs about what constitutes unlawful
discrimination and how we should go about fixing it. These
differences are real, but I submit that we agree about much
more than we disagree. And the common ground that we share has
given us laws that have indeed made our country a better and a
more inclusive place.
So I say to you, Mr. Chairman, and members of the
Committee, that I cannot promise that we will always agree
about what the law is or what is should be, or how best to
prioritize the Division's enforcement objectives, and I do not
purport to have all the answers. What I can promise, however,
is my deep commitment to listening well, to being
intellectually honest, and to enforcing vigorously this
Nation's laws in an unbiased and unwavering manner.
I am honored to be here, and I am honored by the trust the
President and the Attorney General have reposed in me. I hope
to justify that trust through my words and deeds. Thank you.
[The biographical information of Mr. Boyd follows:]
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Chairman Hatch. Well, thank you for your fine statement. We
are very happy to have members of your family here. You must be
very proud, and you should be, as he is a fine man, and he is
going to do a fine job at the Justice Department. And I am
going to try and back him every way I can, and I am sure other
members of the Committee will as well.
I would like to put a statement by Senators Max Cleland and
Zell Miller into the record immediately following Senator
Kennedy's statement, on behalf of Robert D. McCallum, Jr., to
be Assistant Attorney General for the Civil Division. And it is
a very nice statement about how much they support you, and we
are grateful that they took the time to do that. They would be
here personally, except, as you can see, we are having a very
difficult time on the floor on this tax bill, and everybody is
tied up, so I am just glad I could be here at this time.
So, we will turn to you, Mr. McCallum. We are proud of you
and proud that you have this opportunity, and we will take your
statement at this time.
STATEMENT OF ROBERT D. McCALLUM, JR., OF GEORGIA, TO BE
ASSISTANT ATTORNEY GENERAL FOR THE CIVIL DIVISION
Mr. McCallum. Thank you, Mr. Chairman. I am honored to
appear before you for consideration for confirmation of the
Assistant Attorney General for the Civil Division. I am very
grateful for the confidence which President Bush and Attorney
General Ashcroft have shown by nominating me, and I will look
forward, not just at this hearing, but also afterwards, to
providing you, as Chairman, and any members of the Committee
with whatever information will be helpful to the Committee and
to the Senate in discharging its constitutional
responsibilities to advise the President on its nominees.
Like Mr. Boyd, I would like to take this opportunity to
introduce to you my family that is present. My wife, Mimi, who
has been encouraging in supporting me for 32 years, is here.
Chairman Hatch. If you could stand, so we can all see. Glad
to have you here, Mimi.
Mr. McCallum. Senator, I started, as we southerners say,
courting her when I was 15-years-old, and finally, through my
eloquent persuasive powers, convinced her to marry me when I
was 22, and she has been behind me all the way ever since.
Chairman Hatch. I can see that you had to really examine
him pretty carefully.
[Laughter.]
Mr. McCallum. My son, my elder son--I have two boys--my
elder son, Davis, is also present, and he has just moved to
Brooklyn to try and become a constituent of Senator Schumer,
who is not here, but----
Chairman Hatch. David, happy to have you here.
Mr. McCallum. I intend to mention his presence in his
Senator district to him. My younger son, Bailey, is a senior at
Williams College, and is finishing his exams and celebrating
his liberation from burdens and responsibility, so he has not
been able to get with us today.
My parents are also not able to be present. My father, in
another couple of weeks, will have his 90th birthday, and my
mother is 83, and it was difficult and really hard for them to
travel to Washington from Memphis, where I was born and raised,
but I send you their regards, and they wish that they could be
here.
I'd also like to take this opportunity to thank Senator
Zell Miller and Max Cleland for encouraging and supporting me
in this nomination.
And one other person that I feel duty bound to recognize
and express my thanks to is your former colleague, Senator Paul
Coverdell. I think of Paul Coverdell as Senator Coverdell, but
most of you think of him as a U.S. Senator, whereas I think of
Paul as a Georgia State Senator, an institution that he served
for years. He was the senator from my district, and it was Paul
who first encouraged me to participate in local government
activities, which in Atlanta, Georgia, like many other places,
revolves around neighborhood civic associations and county and
municipal races. The thing that impressed me as a young lawyer,
a young citizen in Atlanta, and impressed members of this
Senate, was that Paul Coverdell was always willing to do the
hard work that didn't gain necessarily a lot of public
attention, but it was hard work that was in fact absolutely
necessary to help his constituents, to assist his fellow
legislators, of whatever political persuasion, and to debate
and consider the views of all sides so that the job of
legislation could get accomplished. He always gave thoughtful
consideration to the positions that he took before he took
them, and if confirmed, I would hope to follow in his example
in my own public service. I would like to think that Paul
Coverdell would have been pleased and proud of my nomination by
the President.
I also would like to thank and publicly acknowledge two
other individuals who have had a tremendous influence on me as
a trial lawyer, because the position for which I have been
nominated is to be a trial lawyer, and to lead what I consider
to be the largest trial firm in the United States with the most
complex trial issues.
The first is Judge Sidney O. Smith, a former Chief Judge of
the United States District Court for the Northern District of
Georgia. Judge Smith was my law partner, and Sidney is now
retired from the practice of law. He set a remarkable example
of what a lawyer should be, and he was always available with
both wit and wisdom, to advise younger lawyers like me as we
came along. He inspired many to seek public service, me
probably the least of them. For instance, two of his law clerks
now sit on the Eleventh Circuit Court of Appeals, Judge Stan
Birch and Judge Larry Edmondson.
The second is G. Conley Ingram, a former justice of the
Georgia Supreme Court, appointed to that position by then
Governor Jimmy Carter. Conley is also one of my law partners,
and no one, absolutely no one, has had a greater influence on
me, in my development as a trial lawyer. I was privileged to
try cases with him, to argue appeals with him, and perhaps best
of all, to laugh with him when the burdens and responsibilities
of a law practice might have seemed overwhelming and
oppressive. Conley Ingram has now returned to judging. He sits
as a senior judge of the Superior Court of Cobb County,
Georgia, a bench on which his daughter, Lark Ingram, also
serves with distinction. So when you call us the Superior Court
of Cobb County and ask for Judge Ingram, you have to specify
which judge you are talking about.
I very much appreciate this Committee affording me this
opportunity to discuss issues that are of interest to the
Committee in evaluating my qualifications for this position,
and I will look forward to providing whatever information might
be helpful. Thank you, Mr. Chairman.
[The biographical information of Mr. McCallum follows:]
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Chairman Hatch. Thank you, Mr. McCallum. You have excellent
qualifications, and we look forward to your confirmation.
I would be happy to turn to the ranking member, the
Democrat leader on the Committee, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. I keep anticipating
votes over there.
Chairman Hatch. Yes, I do too.
Senator Leahy. They have had a pile of them, but they have
all been voice votes, and so I apologize for not being here
earlier. I know Senator Kennedy has already been here, and of
course the Chairman has.
I know that this is the fifth hearing this year on the
President's nominations of leadership positions at the
Department of Justice. We have probably been moving faster than
certainly this Committee has moved for a number of years, and I
think that is right. We have usually had the Assistant Attorney
General heading the Civil Rights Division considered on his
own, but I am glad to see that moving forward.
I do not think anybody is going to do to Mr. Boyd what
happened to his predecessor. You will get, I think, confirmed,
and not have to wait the three and one-half years Mr. Lann Lee
did.
Mr. McCallum, your predecessor was pending for over a year
in Committee and 18 months in the Senate, and I know the
Chairman does not intend that to be the situation with you, nor
would anybody on this side expect to do that. I am not the one
in charge, but I can assure you that the Democrats in the
Senate want to move forward quickly.
I will put the rest of my statement in the record, and
thank you for having this hearing, Mr. Chairman.
[The prepared statement of Senator Leahy follows:]
Statement of Senator Patrick Leahy, a U.S. Senator from the State of
Vermont
This is the fifth hearing this year on the President's nominations
to leadership positions at the Department of Justice. Again this
morning we proceed on two important Executive Branch nominations.
Given the interest in the protection of the civil rights of all
Americans and the importance of the Assistant Attorney General to head
the Civil Rights Division, we have traditionally considered that
nomination on its own. At times, nominations to head the Civil Rights
Division have faced controversy, delay and opposition. Indeed, the
nomination of Bill Lann Lee, which was initially received by the Senate
in 1997 was never accorded a vote by the United States Senate and was
kept pending before this Committee for almost three and one-half years.
I know of no one who intends to treat the nomination of Mr. Boyd in
that fashion. Senator Kennedy's introduction of the nominee and the
commitments that the nominee is able to give to the Committee regarding
the vigorous enforcement of our civil rights laws should go a long way
toward clearing the way for Committee consideration and consideration
by the Senate as soon as all Senators have had a reasonable opportunity
to ask questions and receive responses.
The Chairman has again decided to combine a hearing on a nomination
that traditionally takes place on its own with another important
Executive Branch nomination. This time he has chosen to include the
nominee to be the Assistant Attorney General to head the Civil
Division, as well. The Civil Division has its own very important
responsibilities with respect to Government litigation.
The confirmation process for Mr. McCallum's predecessor was pending
for over a year in Committee and 18 months the Senate. None of us
anticipates such an extended process in connection with Mr. McCallum's
nomination. I was always puzzled why those extended delays kept David
Ogden from being confirmed promptly, especially since his eventual
confirmation by the Senate was by unanimous consent. If all goes well
today, it is my hope to see the Senate consider Mr. McCallum's
nomination before the June 30 date on which the Senate confirmed Frank
Hunger to be President Clinton's Assistant Attorney General for the
Civil Division back in 1993 and long before the Senate confirmed Stuart
Gerson to be the first President Bush's head of the Civil Division back
in October 1989.
1 want to thank the Chairman for reconsidering his decision of the
last few days and ultimately deciding not to add judicial nominations
to this hearing at the last minute. I stand ready to consult with him
on a realistic hearing schedule for those nominees.
Chairman Hatch. Well, thank you, Senator. We will turn to
you for any questions you have of these two witnesses, and
begin with you.
Senator Leahy. Mr. Boyd, as you know, many of the civil
rights organizations represent the interests of African-
Americans and Hispanics that criticized the conduct of last
year's Presidential election, particularly in Florida. You will
be the head of the Civil Rights Division in an administration
led by one who has said, and can justly say, that his election
as President hinged on what was seen as the results of Florida.
With that in mind, the President of the United States has every
reason to want to feel that there are no problems in Florida,
but also is charged with upholding all the laws of the country,
as is the Attorney General. Will you assure us that you will
look into and fully and honestly investigate the complaints of
African-Americans and Hispanics who said that they were shut
out, in one way or another, of the Presidential race in Florida
last year?
Mr. Boyd. Senator, thank you for that question, and giving
me an opportunity to talk about an issue that is of genuine
importance to all Americans, as it should be.
The simple answer to your question, Senator, is I will go
wherever the evidence and the law lead without flinching, and I
think, if I may, Senator, that that is one respect in which my
experience particularly well suits me to do. As the Senator may
know, I spent 6 years as an Assistant United States Attorney,
doing exactly that. I understand that this is taking place now
in a crucible where the scrutiny is greater, the lights are
brighter, and the stakes perhaps higher, and I understand that
people have concerns about the fairness and the impartiality
and the vigor with which the investigations regarding
allegations of voting impropriety, voter intimidation,
limitations on access to voting, especially on the part of
people of color, is of real concern.
And I can assure you, Senator, that I would investigate any
allegations, any allegations supported by any credible evidence
of any kind of voter fraud, impropriety, limitations on access
to voting. That would be a top priority. And, frankly, Senator,
I think that the President and the Attorney General have
indicated their commitment to that mission by announcing that
the voting section of the Civil Rights Division will be
enhanced by an additional eight full-time lawyers, and I'm
happy to be able to have additional resources to make sure that
no American is excluded from being able to exercise the most
important franchise.
So the simple answer to your question, Senator, is yes.
Senator Leahy. Mr. Boyd, frankly when asking the question,
I did not expect any different answer from you. I fully expect
to be supporting your nomination on the floor. If that one
chance out of 100,000 you had answered differently, I can
assure you, I would not be supporting. But if you had answered
differently, to be fair to both President Bush and Attorney
General Ashcroft, I suspect that they would want to withdraw
your nomination. I am not trying to redo last year's election.
The Supreme Court has ruled on that, and that is the end of it.
I support whomever is President, whoever has been inaugurated.
In a great and powerful Nation like ours, we can do no
differently.
But I asked you the question also to give you some
protection should there by anybody who would suggest you do not
believe in looking for any question, whether it is Florida or
Vermont or Utah or anywhere else, on voting irregularities.
Note, this Committee will back you. I think Senator Hatch and I
would be the first to back you on something like that.
Democracy only works if everybody can feel that it is a fair
election. One side or the other is always going to feel they
wished their person had won, but we are not going to get people
to turn out and vote unless they know that their votes are
going to be counted and they are going to have a chance to
vote.
It is deplorable, when I go around the rest of the world
and see people literally die, literally die to have a chance to
vote, who are willing to put their life on the line, put their
family's lives on the line, sometimes their communities on the
line to vote, and we do not all go out and vote. And you will
be the one who can assure people know they can vote. One side
always wins, one side always loses. That does not bother me.
What bothers me is that they cannot vote.
Mr. Chairman, we have a roll call on. I would suggest that
maybe we submit questions for the record. I know Mr. McCallum,
I have questions about the Department of Justice lawsuit
against the tobacco industry. Senator Durbin and I have written
to Attorney General Ashcroft about that, and I have questions
for you.
Chairman Hatch. Would it be acceptable to you if we do
submit questions?
Senator Leahy. Certainly, Mr. Chairman, because I have a
feeling we are probably now back to the floor.
Chairman Hatch. I have a feeling we are not going to get
back. That is satisfactory to you then?
Senator Leahy. Of course.
Chairman Hatch. Well, then you two have had a better
shorter hearing than I thought you would have.
Senator Leahy. Well, but I am going on the assumption that
the questions are fully answered.
Chairman Hatch. That you will answer questions.
Senator Leahy. The questions are fully answered, not on the
one hand this, on the other hand that--I mean, seriously
answered like Mr. Boyd just did now, further questions to him
or to Mr. McCallum, because if they were not, of course, I
would expect that somebody would request on one side or the
other to have further hearings. But I think they will answer
them.
Chairman Hatch. Well, we will keep the record open till 5
o'clock today for questions from any or all members of the
Committee, and then I would recommend that you answer them as
quickly as you can, because when we get those back, we will be
able to perhaps set a----
Senator Leahy. I----
Chairman Hatch. You need more time?
Senator Leahy. I think we need a little bit more time.
Chairman Hatch. How much time would you like?
Senator Leahy. You know, we have got this on the floor.
Chairman Hatch. 6 o'clock tomorrow?
Senator Leahy. That would be fine.
Mr. Boyd. Senators, Mr. McCallum and I are both trial
lawyers, and we respond well to deadlines, so I can assure
you----
Senator Leahy. You will have even more incentive than
worrying about your client in this case.
[Laughter.]
Chairman Hatch. Well, we are glad to hear that, and what we
will do is keep the record open until 6 o'clock tomorrow
evening, and if you can answer these questions as quickly as
possible, it will be very helpful to the Committee.
With that then, we will end the hearing, and recess until
further notice. Thanks so much.
[Whereupon, at 10:58 a.m., the Committee was adjourned.]
[Questions and Answers follow:]
Questions and Answers
Responses of Ralph F. Boyd, Jr., to questions submitted by Senators
Leahy, Kennedy, Biden, Feingold, Schumer and Durbin
Question 1. What are the main goals you hope to accomp:ish as head
of the Civil Rights Division?
Answer. With respect to priorities, out of respect for the Senate's
role in giving advice and consent on my nomination, I have not
consulted with the career staff of the Civil Rights Division to
formulate enforcement priorities. I regard such consultations to be a
prerequisite to informed decision making. However, I share the Attorney
General's commitment to the vigorous enforcement of voting rights laws,
to eradicating racial profiling and worker trafficking, and to swift
implementation of the President s New Freedom Initiative. If confirmed
as Assistant Attorney General foi Civil Rights, I would expect the
Civil Rights Division to tackle, and effectively deal with, the high
priorities of this Administration.
Question 2. The Supreme Court has held that race-conscious relief
or sex-conscious relief is sometimes the only effective form of relief
for past discrimination, or to prevent ongoing discrimination. (A) As
Assistant Attorney General, will you continue the policy of the Justice
Department to seek such relief in appropriate cases? (B) If not, what
type of relief will you seek instead? (C) What will you instruct the
Civil Rights Division to do, if there is no other form of relief that
would be effective?
Answer. It is my view that race and gender-conscious remedies are
appropriate under some circumstances. I would therefore anticipate
that, if confirmed, depending on the facts and circumstances of each
particular case, race and gender-conscious remedies could be pursued by
the Civil Rights Division in the future.
Question 3. As [Assistant] Attorney General, do you intend to re-
open any existing court orders to seek changes in race-conscious relief
or sex-conscious relief? If so, which cases, and what types of changes?
Answer. I do not at present have my plans to reopen. or revisit any
existing court order. Whether any particular order should continue in
force is a question that can only be answered after a thorough review
of the facts and circumstances of that particular case and the
applicable law. As I have not undertaken any such review of pending
Civil Rights Division cases, I am reluctant to comment on any
particular case. To address the question more generally, however, the
factual and legal landscape that exists when a given order is entered
will often change over time, anti it is possible that some orders could
be modified in the future to reflect any changes applicable to that
particular case.
Question 4. Many private attorneys are ready and able to file
discrimination cases involving only one or two individuals, but few of
them can handle cases involving large-scale patterns and practices of
discrimination. The Justice Department has sometimes handled the large
cases that few outside the government can bring, and has sometimes
spent its resources handling individual cases that many private
sttorr--eys ;.an bring. As Assistant Attorney General, what will your
instructions to the Civil Rights Division be, with respect to the kinds
of cases they are to bring?
Answer. I agree that, as the primary federal law enforcement
agency, the Department of Justice is often uniquely well suited to
litigate large, complex: civil rights cases. Out of respect for th-
Senate's role in giving advice and consent in connection with my
nomination, however, I have not been involved in the operations of the
Civil Rights Division, and thus have not reviewed, nor had the benefit
of, a careful review of the demands on the Civil Rights Division's
resources, or the Division's enforcement priorities in light of those
demands. I have not, therefore, formulated instructions regarding what
kinds of cases the Civil Rights Division should bring.
Question 5
Answer. This June, the Justice Department will file a brief with
the Supreme Court in the Adarand case, in which the Department of
Transportation's disadvantaged business enterprise program is being
challenged as unconstitutional. The Attorney General had originally
pronused to defend the program, telling NBC, ``Obviously, I will defend
the Department of Transportation's regulations.'' Subsequently,
however, the Attorney General said that the Administration might
abandon, or ``reformulate,'' the program rather than defend it. I am
concerned that this Congressionally-supported and properly implemented
program--which the Tenth Circuit found to be constitutional--will not
receive a vigorous defense before the Supreme Court. Can you promise
this Committee that you will urge the Justice Departmentto defend this
regulation to the best of its ability?
Answer. It is my view that the Department of Justice has an
obligation to defend Acts of Congress from constitutional challenge
whenever a reasonable argument can be made in support of a statute. My
presumption is that the Department of Justice will apply this principle
to the Adarand case and, if confirmed, I will urge itto do so. Of
course, particular decisions related to the position of the United
States before the Supreme Court would rest with the Office of the
Solicitor General.
Question 6. Do you agree that affirmative action programs in
government programs like the Transportation Department's Disadvantaged
Business Enterprise Program are constitutional and -hoidd continue?
Answer. The Supreme Court has stated that governmental race-based
classifications are subject to strict scrutiny--that is, race-based
classifications are permissible only where a compelling governmental
interest is served and where programs using race-based classifications
are narrowly-tailored. A determination of whether a compelling
governmental interest is served and whether a program is narrowly
tailored is necessarily an individualized one. It is therefore
difficult for me to agree or disagree with the broad statement that
affirmative action programs like the Transportation Department's
Disadvantaged Business Program are constitutional. It is likely that,
when subjected to a strict scrutiny analysis, some governmental
affirmative action programs will be found to satisfy the strict
scrutiny standard while some will require modification. Indeed, in the
Adarand case itself, the Tenth Circuit reached different conclusions
regarding the constitutionality of different versions of the
Department, of Transportation regulations at issue. See Adarand v.
Slater, 228 F.3d 1147, 1187 (10th Cir. 2000)(``[W]e conclude that the
1996 SCC [Subcontractor Compensation Clause] was insufficiently
narrowly tailored as applied in this case and is thus unconstitutional
under Adarand Ill's strict standard of scrutiny. Nonetheless . . . we
conclude that the 1996 defects have been remedied, and the relevant
programs now meet the requirements of narrow tailoring.'').
Question 7. Would you defend these programs internally by, for
example, urging the Solicitor General to take a position that such
programs are constitutional?
Answer. I will vigorously urge the Solicitor General to defend any
government affirmative action program that serves a compelling
governmental interest and is narrowly tailored. Again, however, given
tae individualized inquiry required by the strict scrutiny standard, it
is difficult to generalize about affirmative action programs.
Question 8. As you may know, the Civil Rights Division has an
important role in government programs because it provides guidance to
federal agencies on implementing affirmative action in these programs.
Can you assure the American people that under your leadership, the
Civil Rights Division will continue to provide guidance to federal
agencies to facilitate affirmative action in government programs?
Answer. Should I be confirmed, the Civil Rights Division will
continue to provide guidance to federal agencies with respect to
affirmative actions programs.
Question 9. Many public school districts have adopted diversity
policies which result in racial desegregation at the K through 12
level. These policies have been attacked in the courts as impermissible
race-consciousness, and the Civil-Rights Division has supported these
policies in a number of lawsuits, for example in Montgomery County,
Maryland and in Rochester, New York. Will you continue to support these
policies?
Answer. As I have said previously, I believe that diversity is very
important to our nation's schools. This includes not only universities,
but also K through 12. It is certainly of the utmost importance as a
tool to overcoming vestiges of segregation. Indeed, I have benefitted
personally from efforts to promote diversity, and from having had the
opportunity to learn and work in increasingly diverse environments. I
will continue to support efforts to overcome vestiges of segregation
and achieve unitary status in public school districts. With respect to
the lawsuits to which the Senator refers, I am unfamiliar with the
details of the policies in those cases.
Question 10. In past decisions, the Supreme Court said that school
districts should not be declared unitary unless they have taken all
feasible action to eliminate all vestiges of discrimination including
educational deficits and housing segregation caused by school
segregation. (A) Will you look closely at requests for unitary status
in which Department of Justice is involved to assure that these
vestiges are adequately addressed? (B) Will you ensure that all such
vestiges are eliminated before agreeing to any motions for unitary
status?
Answer. (A) Yes.
(B) I share the Attorney General's view that segregation is
inconsistent with the 14th Amendment's guarantee of equal protection
for all of its citizens. If confirmed as Assistant Attorney General for
Civil Rights, I would work to ensure that school districts that have
not achieved unitary status take all feasible action to eliminate all
vestiges of discrimination. However, it would not be appropriate for me
to commit to a particular course of action regarding future cases,
except to say that I would follow the goveraing law, and apply that law
in an intellectually honest manner.
Question 11. As head of the Civil Rights division, would you
support the right of public universities to consider race in deciding
whether to admit students? (A) For what purposes, if any, do you
believe that public universities may consider race? (B) Do you believe
that fostering diversity within a student body is a constitutionally
sufficient rationale to support the use of affirmative action? (C) What
is your view of the constitutionality in recruitment efforts that are
specifically designed to broaden the pool of minorities and women? Do
you believe that Justice Powell's decision in the Bakke case is the law
of the land?
Answer. Like all government race-based classifications, the use of
racial classifications by public universities in admissions is
permissible where the racial classifications are narrowly tailored to
serve a compelling governmental interest. Thus, I would support public
universities' consideration of race where the program in question met
these requirements. I believe that diversity is important to our
nation's universities, particularly its public universities. This
diversity advances important educational (and, for that matter,
workplace) objectives, and promotes fairness and equality of
opportunity for all people. Indeed, I have benefitted personally from
efforts to promote diversity; and from having had the opportunity to
learn and work in increasingly diverse environments.
(A) and (B) For me therefore, the importance of diversity in our
universities (and in other institutions throughout our society) in
virtually inarguable. However, whether, as a legal matter, the goal of
fostering diversity is a constitutionally sufficient rationale to
support the use of non-remedial racial classifications is a harder
question.
The contours of the boundary between the constitutional and
unconstitutional 1ise of race in public university admissions are
unclear and in need of clarification by the Supreme Court. As many
commentators have noted, with the exception of the one paragraph of
Justice Powell's opinion holding that the California Supreme Court's
decision should be reversed as to its holding that the use of race in
Davis' admissions program was never permissible, none of the six Bakke
opinions issued by the Supreme Court in that case were supported by a
majority of the Court. Thus, while five Justices agreed that the
University of California at Davis was not prohibited from ever
considering race in its admissions process, there was disagreement as
to what rationale or rationales justified consideration of race. In
particular, no other Justice joined that portion of Powell's opinion
discussing ``diversity'' as a constitutionally permissible basis for
consideration of race in admissions. Accordingly, subsequent lower
Court decisions have stpzggled to discern which rationales foi
consideration of race are permissible in the admissions context. In
particular; while the law seems well-settled that it is permissible to
consider race as a remedial response to well documented past
discrimination by the institution implementing the racially conscious
program, the lower courts have split on the question of whether Justice
Powell's ``diversity'' rationale articulates a compelling governmental
interest. While the Supreme Court's affirmative action decisions in
Croson and Adarand raise the question of whether nonremedial racial
classifications will ever survive strict scrutiny analysis, the Court
has not--learly overruled Bakke.
Therefore, I view the question as an open one, and would have to
review each program on a cases by case basis to determine if a
diversity-based race-conscious admissions program was narrowly tailored
to further a compelling state interest.
(C) I would have to review any specific recruitment program before
reaching a firm conclusion, but I generally support efforts to broaden
the pool of applicants to educational institutions and increase the
number of qualified applicants of all races, genders, and backgrounds.
My views on Bakke are expressed above, and the Bakke decision is
the law of the land only with respect to its actual holdings. Because
the six Bakke opinions each failed to gather five votes (with the
exception of the one paragraph of Justice Powell's opinion discussed
above), considering any of the six opinions as expressing the reasoning
of the Court is problematic.
Question 12. Many observers have suggested that the current
litigation involving the use of affirmative action by the University of
Michigan in both undergraduate and law school admissions will
ultimately be resolved by the Supreme Court. As you know, there are
currently conflicting decisions in that litigation, as one District
Court judge has upheld the university's use of affirmative action for
undergraduates, and another has struck down the use of affirmative
action by the law school.
(a) Are you familiar with the District Court opinions in the
Michigan cases?
Answer. Yes.
(b) Do you find the District Court's opinion striking down Michigan
Law School's affirmative action program persuasive:
Because the Civil Rights Division may be called upon to take a
position in one or both of the Michigan cases, I hesitate to engage in
a specific evaluation of these cases, especially without the benefit
and insight that I would hope to gain by discussing this with the
career attorneys at the Division. The different outcomes in these two
cases clearly illustrate just how fact intensive these cases can be and
how correspondingly great our obligations are as government attorneys
to examine carefully the specific facts of each case. In my experience,
powerful facts typically drive or substantially influence litigation
outcomes.
(c) From what you know of this case, do you believe it would
provide an appropriate vehicle for the Supreme Court to rule on the use
of affirmative action by colleges and universities?
While I do think the Supreme Court should directly address the
question of when racial classification by public universities is
permissible, I hold no opinion as to whether the Michigan Law School
case, as opposed to any other pending admissions' affirmative action
case, would present the most appropriate vehicle for it to do so.----
Question 13. In the University of Michigan cases, a range of
evidence was put in the record showing that there were compelling
educational justifications for pursuing racial and ethnic diversity.
This evidence included the expert testimony of William Bowen and Derek
Bok, former president of Princeton and Harvard respectively, who,
relying on evidence from their study, The Shape of the River, showed
the benefits of a racially and ethnically diverse student body in
producing leaders from under-represented minority groups and in
promoting racial understanding, and Patricia Gurin, a psychology
professor at Michigan, who testified on the cognitive benefits of
racial and ethnic diversity in the classroom, as well as the long-term
benefits gained through increased ability to deal with others from
different racial backgrounds. Quite apart from the question of whether
Bakke is good law, do you think that a University may ever have a
compelling interest in pursuing racial and ethnic diversity, because of
the cognitive and democracy benefits gained by diversity? What kind of
evidence would you require to show this?
Answer. I believe that racial and ethnic diversity is vitally
important to our nation's universities, particularly its public
universities. This diversity advances important educational (and, for
that matter, workplace) objectives, and promotes fairness and equality
of opportunity for all people. Indeed, I have benefitted personally
from efforts to promote diversity, and from having had the opportunity
to learn and work in increasingly diverse environments.
For these reasons, I have spent most of my adult life furthering
this cause. I have worked especially hard to include and involve young
people of color in educational and legal institutions with which I have
had the good fortune to be affiliated. I have worked with young people
of color in the NAACP's ACTSO (academic Olympics) program, and in the
Boston Bar Association's summer jobs program, which places urban high
school students in summer jobs at Boston law firms. I worked vigorously
on outreach and the recruitment of minority students when I served as
the Assistant Director of Admissions at Haverford College, my alma
mater. I was extensively involved in recruiting lawyers of color at the
United States Attorney's Office, and more recently at Goodwin Procter
LLP, my law firm, where I serve on the hiring committee. I also have
worked diligently to recruit (and retain): young lawyers of color to
Boston law firms and public law offices through my work with the Boston
Lawyer's Group; lawyers of color for judicial positions in
Massachusetts through my work on the Judicial Nominating Council; and
professionals of color to jobs in Massachusetts state government
through my work on the Governor's Diversity Advisory Group.
The importance of diversity in our universities is thus for me
quite clear. However, whether, as a legal matter, such diversity
constitutes a compelling governmental interest is a harder question.
The Supreme Court and Congress have repeatedly insisted that mere
racial balancing or quota systems are not appropriate, and thus
diversity cann,)t justify a policy of racial proportionality. Moreover,
the .Supreme Court has made clear that all governmental racial
classifications are inherently suspect and therefore must satisfy
strict scrutiny to be permissible. It is a close question about which I
do not enjoy the comfort or certainty of having a well-settled view,
and for this reason I continue to have an open mind on the matter.
As a matter of conscience, I believe deeply that government should
first help people in need--all people. Government must therefore, act
cautiously and carefully when it classifies people by race, even to
achieve an important objective such as diversity. Although I am not
inalterably opposed to it for the reasons I stated earlier, grouping
people by race does give me some pause.
Question 14. What is your view of the Supreme Court's decisions in
Shaw v. Reno and its progeny, and in particular its decision earlier
this year in Hunt v. Cromartie? In light of those decisions, how would
you advise those States covered under the Voting Rights Act to treat
race in the redistricting process?
Answer. Under Section 5 of the Voting Rights Act, covered
jurisdictions may not implement any redistricting plan that has the
purpose of effect of denying or abridging the right to vote on the
basis of race. Thus, in some instances, the Act requires covered
jurisdictions to consider race in their redistricting deliberations.
Shaw v. Reno and progeny essentially impose a ceiling on the use of
race in redistricting by holding that covered jurisdictions violate the
Fourteenth Amendment if race is a ``predominant'' factor in
redistricting efforts. Though I am not yet fully familiar with the
Supreme Court's jurisprudence in this area, my reading of Hunt v.
Cromartie is that the Court's decision rested more on a re-review of
the factual record, not on any alteration in the Court's predominant
factor standard. The Court held that a three judge panel in the Eastern
District of North Carolina was clearly erroneous in finding that North
Carolina's Twelfth Congressional District, as then configured, was
drawn predominantly for racial reasons. Based on the foregoing, it
appears that any covered jurisdiction seeking preclearance under
Section 5 must submit a redistricting plan that is not motivated
predominantly by race, but also does not cause a retrogression in
minont;, voting strength.
Question 15. In 2007, Congress will consider the extension of
Section 5 of the Voting Rights Act, 42 U.S.C. Sec. 1973c. (A) what is
your position regarding the continued need for this civil rights
provision? (B) Would you advocate for its extension when it comes
up for renewal in 2007?
Answer. Section 5 continues to be the primary means of ensuring
that covered jurisdictions preserve and promote minority voting
strength. The decision to revisit Section 5 is a legislative
prerogative. I can assure the Senator, however, that, if I am
confirmed, the Civil Rights Division will take seriously its
preclearance obligations under Section 5 for as long as Section 5 is
existing law.
Question 16. Federal observers have been sent to monitor elections
in a variety of circumstances, including when local jurisdictions
request them, and when the Department's pre-election investigation
indicates there may be intimidation, harassment, or other interference
with minority voters at the polls on election day. Are you willing to
maintain this program at its current levels or will you cut back on the
number of observers sent by the Department to monitor elections?
Answer. I share the Attorney General's view that the use of
election observers in covered jurisdictions and election monitors in
non-covered jurisdictions should be increased in order to better
discourage voter fraud and help ensure voting rights.
Question 17. What priority will you give as Assistant Attorney
General to enforcing the provisions of Section 2 of the Voting Rights
Act, which prohibits electoral practices that dilute minority voting
strength by denying minority voters an equal opportunity to elect
candidates of their choice to office?
Answer. I share the Attorney General's view that enforcement of the
Voting Rights Act should be a priority. I believe that Section 2 is one
of the most important federal laws ensuring equal access for minority
voters. If confirmed and presented with credible evidence that a
jurisdiction has imposed a practice or procedure that dilutes minority
voting strength in violation of Section 2, I would expect to direct the
Voting Section to investigate the matter and enforce Section 2 as
appropriate.
Question 18. Supreme Court decisions have re:iad upon the 14th
Amendment to strike down majorityblack and Hispanic congressional and
legislative.districts enacted by state legislatures. Isn't that an
example of judicial activism, in which the Court is substituting its
view of a proper redistricting plan for the view of the state
legislatures?
Answer. My understanding of the Court's decisions in Shaw v. Reno,
Miller v. Johnson and other similar cases is that the Court is not
imposing on the states its view of a proper redistricting plan, but is
instead preventing covered jurisdictions from violating the Fourteenth
Amendmei.t by relying too heavily on racial classifications.
Question 19. As Assistant Attorney General, will you continue to
enforce the ``discriminatory effects'' standard under the Voting Rights
Act?
Answer. I understand the Senator to be referring to the
``discriminatory effects'' prong of Section 5 of the Voting Rights Act,
and to the Civil Rights Division's responsibilities to preclear
redistricting plans under that section. If confirmed, I would continue
to enforce Section 5 to prevent implementation of redistricting plans
having an improperly retrogressive effect on minority voting strength.
Question 20. Are you willing to vigorously enforce Section 203 of
the Voting Rights Act which requires the ballots and other election-
related materials be translated in certain areas of the country where a
number of citizens are limited English proficient?
Answer. Yes.
Question 21. Do you agree that certain states, with a history of
using discriminatory methods to intentionally keep black voters from
being able to register to vote, such as literacy tests, should still be
required to submit changes in election laws or procedures to the
Justice Department or the District Court for the District of Columbia
for review before those laws or procedures are allowed to take effect?
Answer. Section 5 continues to be the primary means of ensuring
that jurisdictions with a history of minority voter disenfranchisement
preserve and promote minority voting strength. If I am confirmed the
Civil Rights Division will continue to enforce Section 5 of the Voting
Rights Act, as it will all existing federal statutes falling within its
jurisdiction, including careful review of all redistricting plans
submitted to the Voting Section by covered jurisdictions.
Question 22. Will you ensure that the Justice Department carefully
reviews all new redistricting plans drawn after the 2000 census that
are submitted to it to guarantee that such plans do not have the
purpose or effect of discriminating against minority voters?
Answer. If confirmed, I would ensure that the Voting Section
carefully reviews all redistricting plans submitted to it by covered
jurisdictions under Section 5 of the Voting Rights Act.
Question 23. Will you allow the Civil Rights Division to continue
bringing meritorious claims under Section 2 of the Voting Rights Act
where it appears that the voting strength of minority voters is being
diluted by unfair redistricting plans?
Answer. Yes.
Question 24. As Assistant Attorney General, will you allow
Department of Justice (DOJ) personnel who have gained expertise in the
area of clinic access to continue to work in this area if they so
desire?
Answer. Having served for several years as a career Assistant
United States Attorney, and having been a litigator for almost 17
years, I believe as a general matter that experience and expertise are
important factors in decisions regarding personnel assignments.
Out of respect for the Senate's role in giving advice and consent,
I have not reviewed, nor had the benefit of, a careful review of the
Department of Justice personnel who have gained expertise in the area
of clinic access. I am unaware of any proposals to reassign such
personnel and have no such plans of my own. It would not be appropriate
for me to make any additional statements, however, concerning the
future employment status of Department personnel whom I have not met,
and with respect to whose performance I have no knowledge.
Question 25. In Alexander v. Sandoval, the Supreme Court recently
held that private plaintiffs cannot sue in federal court to enforce the
regulations under Title VI of the Civil Rights Act of 1964 that
prohibit recipients of federal funds from using practices that have a
discriminatory effect. Because the Court did not invalidate these
regulations, organizations that receive federal funds might be
violating federal regulations due to discriminatory practices, but the
individuals affected by those practices now cannot sue to enforce the
regulations. This makes it even more important for the federal
government to vigorously enforce the Title VI disparate impact
regulations, through both lawsuit and administrative investigations.
What plans do-you have to ensure the continued vitality of these
regulations.
Answer. I agree with the Senator that, because private litigants
may no longer bring suit under Title VI to enforce disparate impact
regulations passed under Section 602 of that law, added responsibility
falls on the federal government to monitor Title VI compliance Out of
respect for the Senate's advice and consent function I have not yet
consulted with the Attorney General regarding this issue, nor have I
formulated any specific plans regarding Title VI regulations. I do
note, however, that private litigants, depending on the circumstances,
may have other means of enforcing regulations promulgated under Title
VI, e.g., private actions under 42 U.S.C. Sec. 1983. One recent
decision has so held. See South Camden Citizens in Action v. New Jersey
Department of Environmental Protection, Civil No. 01-702 (D.N.J., May
10, 2001).
Question 26. One way to promote trust between the police and
communities is to ensure that we are recruiting and hiring a diverse
police force that has the requisite skills to engage in community
oriented policing. For many years, the Civil Rights Division has
brought lawsuits against police departments using hiring tests that
have an adverse impact on minority applicants, where the tests have not
been shown to predict successful job performance. Police tests that
focus only on cognitive skills are said to do a worse job at predicting
success as a police officer than tests that add elements to evaluate
other skills and personality traits, such as problem solving and
teamwork. Will you continue bringing lawsuits against departments using
tests that have a disparate impact, where alternative selection devices
with less adverse impact are available?
Answer. 1, too, believe that hiring tests that impose an adverse
impact on minority applicants, where those tests have not been shown to
adequately predict successful job performance, are unlawful. I hesitate
to comment, however, regarding the job relatedness of specific groups'
tests without having the opportunity to review carefully the specific
tests and the facts of each case, and without the benefit of opinions
of the career attorneys at the Civil Rights Division. I commit,
however, to continuing to enforce the disparate impact provisions of
Title VII.
Question 27. Last year, President Clinton issued Executive Order
13166, which is aimed at providing persons who have limited English
proficiency (LEP), often as a result of their national origin, with
meaningful access to federally conducted and federally assisted
programs and activities; for example, federally funded hospitals taking
reasonable steps to provide translation services to LEP patients, so
they can understand the medical advice and trezt:.zcnt they are
receiving. Will you commit to supporting and carrying out the existing
Executive Order, and oppose efforts to eliminate it?
Answer. If confinned, I would steadfastly implement and enforce
Executive Order 13166. As a personal matter, I believe that people with
limited English skills should rot be left behind, especially in the
circumstances discussed in your question. People simply cannot have
meaningful access to health care if they are not able to understand the
medical advice and treatment they are receiving.
Although the factors set forth in the guidance documents under
Executive Order 13166 appear to reflect a reasoned approach to deciding
when programs receiving federal assistance must provide limited English
proficiency services, it would not be appropriate for me to commit to a
course of action regarding the Order without the benefit of careful
study, and without considering the views of affected components of the
Department of Justice and other agencies within the Administration. If
confirmed, I would welcome your views on this important matter.
Question 28. The Justice Department's power to initiate inquiries
to determine whether there is a ``pattern or practice'' of abuse and
poor accountability in particular police departments has become an
essential tool in combating unchecked police nusconduct. Investigations
in Pittsburgh, Los Angeles, and New Jersey, for example, have not only
lead to improvements in those particular department, but also send a
strong signal to all police departments about the `best practices'' the
Justice Department supports. (A) Can you assure us there will be no
retreat from these investigations? (B) Are you committed to the
continuing the Division's commitment to employing consent decrees to
remedy the patterns and practices in the subject jurisdictions?
Answer. Congress enacted U.S.C. Sec. 14141 to promote police
integrity, combat police misconduct, and ensure the protection of civil
rights for all Americans. I agree with those goals and I share the
Attorney General's stated commitment to enforce this statute.
In this area, the Civil Rights Division's job is to identify
problems and help solve them, preferably cooperatively, but through the
adversarial litigation process if necessary. At least as air initial
matter, cooperative efforts to work with local law enforcement
agencies, victims groups, and civil rights organizations may in some
instances be more productive and efficient. The Division can provide
consulting, training, and other technical assistance to police
departments that are engaged in serious efforts to correct problems and
put in place processes and practices designed to minimize, if not
eliminate entirely ``pattern or practice'' problems. Where they are
not, if confirmed, I would expect to instruct the Special Litigation
Section to pursue adversarial litigation, utilizing a range of remedial
tools, including consent decrees.
Question 29. How would you, as [Assistant] Attorney General,
encourage enforcement of fair housing laws under a disparate impact
theory?
Answer. The Civil Rights Division uses a vanety of tools to prevent
discrimination in housing and related activities, e.g., the Fair
Housing Act and Title II of the Civil Rights Act, and I am aware that
many courts hold, in certain circumstances, that the Fair Housing Act
may be violated on a showing of disparate impact, absent evidence of
discriminatory intent. Pursuant to 42 U.S.C. Sec. 3614, the Attorney
General may initiate a civil enforcement action where he has reasonable
cause to believe that any person or group of persons is engaged in a
pattern or practice that violates the Fair Housing Act. If confirmed, I
will enforce these laws fairly and evenhandedly. Equally important to
this fair and evenhanded commitment is my commitment to review every
suit recommendation presented to me to ensure that where discrimination
exists, it is ended and remedied.
Question 30. In recent years as a Congress we have gone to great
length to increase homeownership generally and specifically in minority
communities. A major component to owning a home is the acquisition of
property insurance. Over the last five years we have seen significant
evidence demonstrating that some major national insurance carriers
intentionally discriminate in low income, predominantly minority
neighborhoods. In light of this, what is your view on discrimination in
the homeowners' insurance market? And in your opinion is such
discrimination covered under the Fair Housing Act?
Answer. Home ownership, especially in minority communities, is a
basic part of the American dream. I agree with the Senator's view that
acquisition of property insurance is a necessary prerequisite to home
ownership and that intentional discrimination in the insurance market
is unacceptable. When discrimination is at work in illegally denying
persons home ownership, I will work to enforce all applicable laws,
including the Fair Housing Act, to end that discriminatory conduct.
Question 31. The disabled community continues to face, a number of
frustrations, one of which is finding accessible housing. A number of
people feel that one of the biggest impediments to overcoming this
hurdle is the implementation of the Fair Housing Acts ``new
construction'' requirements. As Assistant Attorney General you will be
asked to uphold this requirement will you strongly enforce this
provision of law. Do you believe that the accessibility for the
disabled is a matter suitable for federal intervention?
Answer. Yes.
Question 32. The Department of Justice, Civil Rights Division,
operates a well coordinated and effective ``testing'' program to detect
discriminatory housing practices. Will you continue to use testing to
establish pattern and practice evidence of civil rights abuses and
discrimination in housing.
Answer. Yes.
Question 33. The Civil Rights Division has been very active in
prosecuting lending discrimination cases. (A) Will you continue to
prosecute lending discrimination cases? (B) What is your position on
the use of an effects test to prove lending discrimination?
Answer. The right to own a home and to access credit are basic to
the American dream. These rights should be avaiiahle to every person.
When discrimination plays a role in either denying persons these rights
or exploiting their vulnerabilities, I will work to end that
discriminatory conduct and make the victims whole. My understanding of
the proof in such cases is that it can be exceedingly ccmplex, covering
a wide range of practices and offices, and involve the conduct of many
employees of the lender. My judgment and experience tell me that it
would be the rare and unusual case that relied only on a simple effects
test as proof of discrimination. It is much more likely that when
Division attorneys recommend that a suit be brought in this area, I
will be presented with fact patterns that require a review of a broad
range of evidence.
Out of respect for the Senate's advice and consent function, I have
not yet had the opportunity to confer with the career staff on this
issue. I believe it is important to speak with them regarding the
Division's history in these cases and the specific evidence presented
before making specific determinations in the fair lending area.
Question Submitted by Senator Leahy and Senator Kennedy
Question 1. Many Senators on this Committee have been strong
supporters of the Americans with Disabilities Act. In recent years,
there has been an increase in litigation between the Department of
Justice and private industry concern-ing the regulations issued in
furtherance of this Act. Will you encourage the Civil Rights Division
to engage in serious and substantial negotiations with responsible
industries that seek in good faith to clarify the requirements of the
ADA?
Answer. Yes.
Question Submitted by Senator Biden
Historically; the most important tool the Civil Rights Division has
wielded in enforcing the law is the so-called pattern-or-practice suit.
As the name implies, this tool allows the Division to go after patterns
of discrimination, rather than the misdeeds of individuals. For
instance, the Civil Rights Division has used pattern-or-practice
litigation to reach consent decrees with several lawenforcement
agencies. The problem there was rooted not so much in discriminatory
conduct by individual officers, but in policies and patterns those
agencies adopted years ago that no longer reflect our law.
Question. Can we have your full commitment to the use of pattern-
or-practice litigatior--in enforcing our civil rights laws?
Answer. Yes. If confirmed, and in consultation with the Attorney
General, I would use 42 U.S.C. Sec. 14141 where appropriate to redress
patterns of discrimination, especially in situations where efforts to
put an end to persistent, unlawful conduct are not successful through
other means.
Questions Submitted by Senator Ted Kennedy
Question 1. A federal district court judge in the University of
Michigan undergraduate case recently ruled in favor of the University
on summary judgment, finding that: ``a racially and ethnically diverse
student body produces significant educational benefits such that
diversity, in the context of higher education, constitutes z compelling
governmental interest under strict scrutiny.'' Do you agree with the
court's view that diversity can be a compelling governmental interest
in the higher education context?
Answer. I believe that diversity is very important to our nation's
universities, particularly its public universities. This diversity
advances important educational (and, for that matter, workplace)
objectives, and promotes fairness and equality of opportunity for all
people. Indeed, I have benefitted personally from efforts to promote
diversity, and from having had the opportunity to learn and work in
increasingly diverse environments.For these reasons, I have spent most
of my adult life furthering this cause. I have worked especially hard
to include and involve young people of color in educational and legal
institutions with which I have had the good fortune to be affiliated. I
have worked with young people of color in the NAACP's ACTSO (academic
Olympics) program, and in the Boston Bar Association's summer jobs
program, which places urban high school students in summer jobs at
Boston law firms. I worked vigorously on outreach and the recruitment
of minority students when I served as the Assistant Director of
Admissions at Haverford College, my alma mater. I was extensively
involved in recruiting lawyers of color at the United States Attorney's
Office, and more recently at Goodwin Procter LLP, my law firm, where I
serve on the hiring committee. I also have worked diligently to recruit
(and retain): young lawyers of color to Boston law firms and public law
offices through my work with the Boston Lawyer's Group; lawyers of
color for judicial positions in Massachusetts through my work on the
Judicial Nominating Council; and professionals of color to jobs in
Massachusetts state government through rrmy work on the Governor's
Diversity Advisory Group.
For me therefore, the importance of diversiry in our universities
(and in other institutions throughout our society) in virtually
inarguable. However, whether, as a legal matter, such diversity
constitutes a compelling governmental interest such that government is
permitted to classify people by race for the purpose of assigning
opportunities is--for me--a harder question. The Supreme Court and
Congress have repeatedly insisted that mere racial balancing or quota
systems are not appropriate, and thus diversity cannot justify a policy
of racial proportionality. Moreover, the Supreme Court has made clear
that all governmental racial classifications are inherently suspect and
therefore must satisfy strict scrutiny to be permissible. It is a close
question about which I do not enjoy the comfort or certainty of having
a well-settled view, and for this reason I continue to have an open
mind on the matter. Similarly, I also do not have a settled view
regarding the nature and scope of the proof necessary to establish
diversity as a compelling governmental interest.
As a matter of conscience, I believe deeply that government should
first help people in need--all people. Government must therefore act
cautiously and carefully when it classifies people by race, even to
achieve an objective as important as diversity.
Question 2. Although America experienced a significant drop in
violent crime during the 1990s, the number of hate crimes has continued
to grow. In fact, according to FBI statistics, in 1999 there were 7,876
reported hate crimes committed in the United States. That's over 20
hate crime per day, every day.
During the last Administration, the Assistant Attorney General for
Civil Rights was a strong and vocal supporter of needed federal hate
crimes legislation. In an Op/Ed that appeared in the L.A. Times, he
stated that: ``(j]ust as our laws punish crimes more severely when guns
are involved, or when there is deliberate planning and premeditation,
so should they when there is bias motivation.'' Do you support passage
of a federal hate crimes law?
Answer. If confirmed, I would work vigorously to fulfill the
Attorney General's pledge to take all reasonable and appropriate steps
to combat hate crimes at the federal level. I would welcome the
opportunity to have a dialogue with you and other Senators about this
important issue. At this time, however, it would not be proper for me
to state a policy position on such a measure without the benefit of
careful study and without the views of others in the Department of
Justice and the Administration.
Question 3. In light of the Supreme Court's recent federalism
decisions, what is your understanding of the nature and scope of
Congress's powers under the Commerce Clause and 14' Amendment to
protect basic rights?
Answer. Following the Supreme Court's decisions in United States v.
Lopez and United States v. Morrison, congressional power remains broad.
These decisions seem to suggest that Congress may act to regulate and
protect: (i) the use of channels of interstate commerce; (ii)
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities; and (iii) activities substantially affecting
interstate commerce. It would seem however, that these cases suggest
that the Commerce Clause, without more, does not allow Congress to
regulate purely intrastate criminal activity.
As for Congress' powers under the Fourteenth Amendment, Section 5
of that Amendment allows Congress to pass laws abrogating states'
Eleventh Amendment immunity if needed to enforce the requirements of
the Fourteenth Amendment. As the Supreme Court has observed, while
congressional enactments pursuant to Section 5 need not exactly track
judicial developments concerning what is prohibited by the Fourteenth
Amendment, such enactments must exhibit congruence and proportionality
between the injury to be prevented and the means adopted to prevent it.
See, e.g., Board of Trustees v. Garrett, 531 U.S. (Feb. 21, 2001).
Question 4. If federally funded programs or activities are shown to
have a discriminatory effect on minorities or women, should private
plaintiffs be allowed to bring suits challenging those programs or
activities?
Answer. The Supreme Court's recent decision in Alexander v.
Sandoval holds that private parties may not sue to enforce the Title VI
disparate impact regulations. However, even after Sandoval, these Title
VI disparate impact regulations remain on the books. Moreover, private
parties can still sue in situations where evidence of discriminatory
effect, standing alone or with other evidence, can be said to reflect
discriminatory intent on the part of those administering a federally
funded program or activity.
In addition, a federal court recently held that a private party may
sue a state actor based on the fact that its federally supported
program had a discriminatory effect (or disparate impact) on racial
minorities, pursuant to 42 U.S.C. Sec. 1983. See South Camden Citizens
in Action v. New Jersey Department of Environmental Protection, No. 01-
702 (D.N.J., May 10, 2001). Title VII also remains a viable statutory
ground for private party actions alleging disparate impacts on
minorities and women.
If confirmed, I would welcome the opportunity to work with the
Senator, and others, on issues relating to Sandoval and its effects on
the fair administration of federally funded programs and activities.
Question 5. If it is appropriate for the federal government to play
an active role in prosecuting gunrelated crimes, why is it not
appropriate for the federal government to also play a role in
prosecuting hate-motivated crimes?
The Civil Rights Division plays an active role in prosecuting
certain bias-motivated crimes, e.g., 18 U.S.C. '' 245 (bias-motivated
violence directed at school attendance, seeking public employment, and
using public facilities or accommodations), 247 (bias-motivated conduct
obstructing religious freedom), and 42 U.S.C. 3631 (bias-motivated
violence directed at enjoyment of housing). I believe that this is an
appropriate, important role for the Civil Rights Division.
If confirmed, I would work hard to fulfill the Attorney General's
pledge to take all reasonable and appropriate steps to combat crimes,
whether they be motived by bias, hate or otherwise. This would include
a careful study of how best to combat such crimes, and what the federal
government's role should be in achieving this important objective.
Whatever the federal government's ultimate role in addressing this
sonous problem, either through federal legislation, litigation, or
subsidization of state law enforcement efforts, that role should
reflect--and send a clear and unequivocal message about--the extent of
our unwillingness to tolerate this criminal activity.
Question 6. Do you believe a public institution of higher
education--without a history of past discrimination--can ever use race
or gender as one factor among many in creating a diverse student body
without violating the constitutional strict scrutiny standard?
Answer. I believe that diversity is important to our nation's
universities, particularly its public universities. This diversity
advances important educational (and, for that matter, workplace)
objectives, and promotes fairness and equality of opportunity for all
people. Indeed, I have benefitted personally from efforts to promote
diversity, and from having had the opportunity to learn and work in
increasingly diverse environments.
For these reasons, as I previously detailed, I have spent most of
my adult life furthering this cause. I have worked especially hard to
include and involve young people of color in educational and legal
institutions with which I have had the good fortune to be affiliated. I
have worked with young people of color in the NAACP's ACTSO (academic
Olympics) program, and in the Boston Bar Association's summer jobs
program, which places urban high school students in summer jobs at
Boston law firms. I worked vigorously on outreach and the recruitment
of minority students when I served as the Assistant Director of
Admissions at Haverford College, my alma mater. I was extensively
involved in recruiting lawyers of color at the United States Attorney's
Office, and more recently at Goodwin Procter LLP, my law firm, where I
serve on the hiring committee. I also have worked diligently to recruit
(and retain): young lawyers of color to Boston law firms and public law
offices through my work with the Boston Lawyer's Group; lawyers of
color for judicial positions in Massachusetts through my work on the
Judicial Nominating Council; and professionals of color to jobs in
Massachusetts state government through my work on the Governor's
Diversity Advisory Group.
For me therefore, the importance of diversity in our universities
(and in other institutions throughout our society) is virtually
inarguable. However, whether us a legal matter such diversity, absent a
history of past discrimination, satisfies strict scrutiny, is a harder
question. While the Supreme Court's affirmative action decisions in
Croson and Adarand raise the question of whether non-remedial racial
classifications will ever survive strict scrutiny analysis, the Court
has not clearly overruled Bakke.
Question 7. Do you believe that charter schools should have to
comply with federal civil rights laws?
Answer. Yes.
Question 8. Will your office review current congressional
redistricting plans to ensure that they do not have the purpose or
effect of discriminating against minority voters?
Answer. Yes, if confirmed I will ensure that the Voting Section
carefully reviews redistricting plans to ensure that they do not
violate the Voting Rights Act.
Question 9. Since January, we have heard nothing from the
Department of Justice regarding its investigation into voting
irregularities in the 2000 Presidential election. Is the investigation
a top priority for you, and what steps will you take to ensure that it
is completed as soon as possible?
Answer. If confirmed, I would make voting rights investigations and
voting reform a top priority. I would investigate any alleged voting
rights violation supported by credible evidence, whether in the context
of the November 2000 election, or with regard to any other voting
matter. In connection with any such investigation, I would go, as I
stated in my response to a similar question from Senator Leahy during
my confirmation hearing, ``wherever the evidence and law lead without
flinching.''
With respect to the November 2000 presidential election
investigation, I am not yet privy to, and in any event should not
comment on, the details of an ongoing investigation. However, if
confirmed, I would look forward to bringing my skills, judgment, and
experience as a federal prosecutor to bear on that, and any other civil
rights, investigation.
Question 10. As you know, the Department of Transportation has a
Disadvantaged Business Enterprise Program designed to overcome past and
present racial discrimination in federally funded highway programs. Do
you believe it is the Justice Department's responsibility to defend the
constitutionality of this program when the Supreme Court reviews it
later this year in the Adarand case?
Answer. It is my view that the Department of Justice has an
obligation to defend Acts of Congress from constitutional challenge
whenever a reasonable argument can be made in support of a statute. My
presumption is that the Department of Justice will apply this principle
to the Adarand case and, if confirmed,'. will urge it to do so. Of
course, particular decisions related to the position of the United
States before the Supreme Court would rest with the Office of the
Solicitor General.
Question 11. Attorney General Ashcroft has stated that he, believes
that the practice of racial profiling by police should be eliminated.
What litigation efforts should the Civil Rights Division take in
pursuit of this goal? Will you support legislation establishing a
federal cause of action allowing individuals to challenge racial
profiling by local, state, and federal law enforcement agencies?
Answer. Where a pattern or practice of profiling exits and local
law enforcement is neither cooperative nor taking meaningful steps to
eliminate those practices, an enforcement action pursuant to 42 U.S.C.
' 14141 must remain an option. I do not believe, however, this should
be the only step taken by the Civil Rights Division to address the
issue of racial profiling.
First, we need more hard data on racial profiling. We need careful
study to determine definitively the scope, magnitude, permutations and
manifestations of the problem. The Attorney General has asked Congress
to enact legislation authorizing the Department of Justice to collect
data for this purpose. The Civil Rights Division should be involved in
this effort. Second, the Civil Rights Division should make certain that
specific procedures are in place under which individual complaints of
racial profiling are given expedited review by Division attorneys.
Third, the Division should be ready to work cooperatively with local
law enforcement by providing technical assistance regarding data
collection, data interpretation and analysis, training, policy
development, and community outreach.
With respect to legislative proposals, I would welcome the
opportunity to study any legislation that the Senator may propose to
eradicate unlawful racial profiling and to work with him and other
Senators on this issue. At this time, however, it would be improper for
me to take a position with respect to legislation without the benefit
of careful study and the views of others in the Department of Justice
and the Administration.
Question 12. During his 2000 campaign, President Bush expressed his
general disapproval of Department of Justice investigations into
``patterns and practices'' of wrongdoing by police departments, stating
that ``the federal government should not instruct state and local
authorities on how police department operations are conducted, becoming
a separate internal affairs division.'' Do you agree with this
statement? If so, how do you intend to carry out the Department's
``pattern and practice'' jurisdiction under The Violent Crime Control
and Law Enforcement Act of 1994?
Answer. I share the President's belief that the Civil Rights
Division should not micro-manage the internal affairs of local law
enforcement. Deference to local authority, however, does not excuse a
police department from complying with the law.
I believe that the Civil Rights Division has a responsibility to
investigate alleged patterns or practices of unlawful wrongdoing by law
enforcement. Where such investigations uncover reliable evidence of
such unlawful practices, the Civil Rights Division should take
effective measures to eradicate such practices, either with the
voluntary cooperation of the subject police department, or through
adversarial litigation pursuant to 42 U.S.C. Sec. 14141, if necessary.
Moreover, criminal prosecutions may be warranted where the government
has a reasonable prospect of proving beyond a reasonable doubt that law
enforcement officers acted with specific intent to deprive a person of
her federally protected rights while actin under the color of law. See
18 U.S.C. Sec. 242.
Question 13. Legal Services attorneys are prohibited by law from
representing inmates. Aren't their services essential to protect basic
rights. Doesn't the lack of effective representation encourage abuses.
What role you believe the Civil Rights nivisinn should have in ensuring
safe and humane conditions of confinement in jails and prisons?
Answer. Lack of access to legal services hinders the cause of
protecting basic civil rights. This is in part why in 1988 my then-
colleague A. Clayton Spencer and I represented pro bong the entire
class of inmates in the custody of the Massachusetts Department of
Corrections in a class action suit against the Department. The suit
alleged violations of the inmates' due process rights under the United
States Constitution and the Massachusetts Declaration of Rights in
connection with the Department's drug surveillance and testing program,
a program against which we obtained injunctive relief, until the
injunction eventually was vacated by the Supreme Judicial Court of
Massachusetts. See Gonzalez v. Fair, 407 Mass. 448 (1990).
The Civil Rights Division (through its Special Litigation section)
has statutory authority to investigate institutional conditions of
confinement and file lawsuits to rPmcdy a pattern cr practice of
unlawful conditions of confinement in state-operated facilities under
the Civil Rights of Institutionalized Persons Act of 1980. Furthermore,
the Division has similar responsibilities to seek judicial redress in
situations where juvenile offenders are subjected to a pattern or
practice of uunlawful behavior that violates their federally protected
rights under the Violent Crime Control and Law Enforcement Act of 1994.
If confirmed, I would enforce these important statutes.
Questions Submitted by Senator Feingold
civil rights experience & goals/priorities
Question 1. The Civil Rights Division is responsible for enforcing
the civil rights laws of our nation in areas such as education,
employment, housing, voting rights, and disability rights. You have
spent most of your legal career in criminal matters, as an Assistant
U.S. Attorney, and in commercial litigation practice, as an associate
and later a partner with various Boston law firms. It appears that you
have no substantial experience enforcing civil rights laws. Can you
tell this Committee how your experience has prepared you to undertake
the responsibilities of the Assistant Attorney General for Civil
Rights?
Answer. I have been involved in civil rights, and dealt with civil
rights-related issues, all my life. As a child, I grew up attending
civil rights and community action program meetings with both of my
parents, who--along with other committed people--were co-founders of
the Schenectady, N.Y. branch of the NAACP. While in Schenectady, I
served as co-chair of the Schenectady, N.Y. NAACP branch's Afro-
Academic, Cultural, Technological, and Scientific Olympics Program
(``ACTSO''), which provides opportunities for high school students of
color to demonstrate their academic talents and achievements in local,
state and national competitions. During the year that I organized and
raised money for this effort, the Schenectady NAACP branch sent five
local high school students to the national competition in Denver,
Colorado.
While at Harvard Law School, I served as an editor of the Civil
Rights Civil Liberties Law Review, and as President of the Harvard
Defenders, a student public defender organization. During my second and
third years of law school, I represented numerous indigent criminal
defendants in the Roxbury (Boston), Dorchester (Boston), and East
Boston district courts.
Following law school, I clerked for the Honorable Joseph H. Young,
United States District Judge, District of Maryland. During my
clerkship, I assisted Judge Young in the preparation of two published
civil rights decisions. See McAdoo v. Toll, 615 F. Supp. 1309 (D. Md.
1985) (Title VII case discussed in response to Question No. 15(a)(1),
Judiciary Committee Questionnaire), and Smith v. Montgomery County,
MD., 607 F. Supp. 1303 (D. Md. 1985) (strip search case discussed in
response to Question 15(a)(1), Judiciary Committee Questionnaire).
As a practitioner, I have handled pro bono approximately five civil
rights or civil rightsrelated cases as lead counsel. In fact, I have
been lead counsel in two federal civil rights cases against police
officers, who were alleged to have violated the constitutional rights
of criminal defendants. In a third case, I was co-counsel in a state
court civil rights class action brought against the Massachusetts
Department of Corrections, a case that I argued from the lower court
through to the Supreme Judicial Court of Massachusetts. See Responses
to Question 15(b) and (c).
As a federal prosecutor, I spent six years investigating, managing,
and prosecuting a variety of federal (and state) criminai cases,
including firearms and narcotics trafficking, homicide, bombing, and
bank fraud cases. I also led an urban anti-violent crime initiative,
which involved coordinating investigations and cases among numerous
federal and state law enforcement agencies, including the Boston
Police, Massachusetts State Police, Bureau of Alcohol, Tobacco and
Firearms, Drug Enforcement Administration, United States Marshal
Service, Suffolk County District Attorney Ralph Martin's Office,
Massacl:usetts.Attorney General Scott Harshbarger's Office, and
Massachusetts Attorney General Tom Reilly's Office.
All of these experiences have enhanced my knowledge and
understanding with respect to: (i) the fundamental importance of the
rule of law; (ii) making informed and sensible judgments about the
principled and fair application of the law to a given set of facts;
(iii) how to prosecute complex cases successfully; (iv) setting
investigative and prosecutorial priorities; (v) working with people,
both in and out of law enforcement; (vi) deciding when to use
litigation as a necessary enforcement tool, and when more cooperation-
based alternatives may be appropriate to achieve important governmental
and societal objectives; and (vii) the need for vigorous, fair and
sensible enforcement of our laws.
Question 2. What do you believe are the greatest civil rights
challenges facing our nation today? What steps would you expect to take
to address these challenges?
Answer. I believe that there are many civil rights challenges
facing our nation today. They include, among other things: (i) ending
unlawful racial profiling; (ii) ensuring faith and confidence in the
fairness of law enforcement; (iii) opening up opportunities for all
people, especially those who historically have been excluded; (iv)
protecting the voting rights of all Americans; (v) protecting people
from violence or threatened violence, especially where an immutable
characteristic, an irrelevant aspect of an individual's personal life,
or a person's exercise of a fundamental constitutional right serves as
the impetus for violence or threatened violence against them; and (vi),
lowering the temperature, and raising the level of ear national
discourse about race.
If confirmed, I would work with the Attorney General and the career
staff of the Civil Rights Division to enforce existing federal law and
implement civil rights initiatives (e.g., the Attorney General's racial
profiling and voting rights initiatives).
Question 3. What are your priorities for the Civil Rights Division?
In what areas do you think the Division has been lacking or is in need
of improvement?
Answer. Out of respect for the Senate's role in giving advice and
consent on my nomination, I have not consulted with the career staff of
the Civil Rights Division to determine areas of improvement or to
formulate enforcement priorities beyond those already outlined in these
answers. I regard such consultations a prerequisite to informed
decision making in this area. However, I share the Attorney General's
commitment to the vigorous enforcement of voting rights laws, to
eradicating racial profiling and worker trafficking, and to swift
implementation of the President's New Freedom Initiative. If confirmed
as Assistant Attorney General for Civil Rights, I would expect the
Civil Rights Division to tackle, and effectiveiy deall with, the high
priorities of this Administration.
Question 4. Are there areas where you expect to lead the Civil
Rights Division to take a different approach or set a different course
than it has had for the last eight years under the previous
Administration?
Answer. Out of respect for the Senate's role in giving advice and
consent on my nomination, I have not consulted with the career staff of
the Civil Rights Division. I think that consultation with them is a
prerequisite to informed decision making about approaches the Civil
Rights Division should take with respect to particular issues. I note
that the Attorney General has made clear that racial profiling, voting
rights, worker trafficking and implementation of the New Freedom
Initiative will be priorities for this Administration.
Question 5. As you know, there is significant concern in the civil
rights community and among minority populations generally that this
Administration will not be as vigorous as the previous Administration
in enforcing the civil rights laws. What assurances can you give this
Committee that that will not be the case?
Answer. Time and again the President and Attorney General have
expressed their intentions to make civil rights enforcement a priority
of this Administration. I would not be before this Committee as the
President's nominee to head the Civil Rights Division if I did not
think the President and Attorney General were sincere about their
commitments in this area. I can assure the Committee that, if
confirmed, I would, to the best of my ability, work strenuously to
ensure that our nation's civil rights laws are enforced to protect the
civil rights of all Americans--rich or poor, black, white or otherwise,
religious or non-religious, gay or straight, able bodied or disabled,
native or foreign born.
racial profiling & police misconduct
Question 1. I believe one of the greatesi civil rights challenges
facing our nation today is racial profiling by law enforcement agents.
This practice has seriously eroded the important trust between the
police and the communities they are charged to protect and serve. I was
pleased when President Bush pledged earlier this year to end racial
profiling in America. Attorney General Ashcroft has said he believes
racial profiling is unconstitutional and has pledged to work to end
this practice. I am working with Rep. John Conyers on legislation to
eliminate this practice once and for all. You've spent a good part of
your career as a prosecutor working with law enforcement officials to
fight crime, particularly urban and youth violence.
(a) Do you agree with the President and Attorney General that
racial profiling is wrong and should be banned?
Answer. Yes.
Question (b). Do you agree that racial profiling is
unconstitutional?
Answer. Yes. The ;use of racial stereotypes as the basis for law
enforcement action is wrong and unconstitutional.
Question (c). Do you agree that the federal government has a
responsibility to ensure that discriminatory police practices like
racial profiling are eliminated, not only at the federal level, but at
the state and local levels?
Answer. Yes.
Question 2. The Special Litigation Section of the Civil Rights
Division has played an important role in helping to combat racial
profiling and other police misconduct by state and local law
enforcement agencies. Under the Violent Crime Control and Law
Enforcement Act of 1994, or 42 U.S.C. ' 14141, the Justice Department
can take legal action against a law enforcement agency that has engaged
in a pattern or practice of conduct that deprives persons of their
constitutional rights. In addition, under the Safe Streets Act of 1968,
the Justice Department is authorized to intervene to eliminate a
pattern or practice of discrimination based an race, color, religion,
national origin or sex in connection with any law enforcement agency
that receives financial assistance from the Department of Justice.(a)
Have you had any experience with these statutes as an Assistant U.S.
Attorney?
Answer. These are civil statutes. I was assigned to the Criminal
Division of the U.S. Attorney's Office and thus have not previously
enforced these provisions.
Question (b) Do you agree that Justice Department action pursuant
to these statutes is an effective and necessary tool to combat
discriminatory policing practices like racial profiling and other
police misconduct?
Answer. I agree that Justice Department enforcement of these
statutes has proven to be an important and effective tool in combating
police misconduct.
Question 3. In addition to authority given to the Justice
Department to investigate and prosecute civil rights violations by
state and local law enforcement, certain of our civil rights laws also
provide for private rights of action. For example, with thousands of
law enforcement agencies across the country, the Special Litigation
Section does not have the resources to investigate and pursue ali
allegations of racial profiling. I understand that in private practice
you represented some inmates in a federal civil rights class action
challenging a state prison's drug testing program. You were acting in
that case as a ``private attorney general.'' Do you agree that, in
addition to the authority of the Justice Department to intervene, an
effective protection and enforcement of our nation's civil rights laws
has been the ability of individuals to pursue legal action against law
enforcement officials, state actors or other wrongdoers?
Answer. Yes. The case in which I represented the class of inmates
in the custody of the Massachusetts Department of Corrections (``DOC'')
was a state court class action. The case involved allegations that the
DOC violated inmates' due process rights guaranteed by the United
States Consutution and the Massachusetts Declaration of Rights.
voting rights
Question 1. The Voting Rights Act is one of the most comprehensive
civil rights statutes ever enacted, eliminating literacy tests and poll
taxes, outlawing intimidation during the electoral process, and
creating various methods for enforcing minority voting rights. Section
2 of the Voting Rights Act, 42 U.S.C. Sec. 1973, has been interpreted
by the United States Supreme Court as prohibiting the dilution of
minority voting strength and requiring that electoral district plans
provide minority voters an equal opportunity to elect their candidates
of choice. Thornburg v. Gingles, 478 U.S. 30 (1986). As a result of the
Voting Rights Act and, especially Section 2, racial and ethnic
minorities have enjoyed unparalleled opportunities to participate in
the electoral process, cast meaningful votes, and elect their
candidates of choice.
(a) What is your position regarding whether compliance with Section
2 of the Voting Rights Act can serve as a compelling justification
supporting the need to avoid diluting minority voting strength during
redistricting?
Answer. Section 2 of the Voting Rights Act is a fundamental
provision for protecting minority voting rights. Section 2 prohibits
vote diiut:of, in redistricting and other contexts, just as Section 5
prevents covered jurisdictions from implementing redistricting plans
that dilute minority voting strength in a manner that has a
retrogressive effect on minority voting strength. E.g., Reno v. Bossier
Parish Schl. Bd., 528 U.S. 320, 335-36 (2000). As to whether Section 2
compliance is a ``compelling'' interest, my understanding is that the
Supreme Court has been willing to assume, without directly deciding,
that Voting Rights Act compliance can be a compelling state interest.
See, e.g., Bush v. Vera, 517 U.S. 952, 976-979 (1996). The use of race
is also governed by the Court's decisions in Shaw v. Reno, Miller v.
Johnson, and similar cases.
If confirmed, I would ensure that federal voting laws, including
Sections 2 and 5, are consistently and vigorously enforced according to
the parameters set forth by the Supreme Court and the Voting Rights Act
itself.
Question (b) What is your position regarding the Department of
Justice's responsibility and authority to enforce Section 2 of the
Voting Rights Act?
Answer. The Department of Justice, as a federal law enforcement
agency with considerable resources, plays an important role in
enforcing Section 2. If any jurisdiction imposes a practice or
procedure to dilute minority voting strength, and the necessary
preconditions exist for a viable dilution claim, see Thornburg v.
Gingles, 478 U.S. 30, 50-51 (1986), that jurisdiction could be subject
to suit under Section 2 and to an appropriate remedy, by injunction or
otherwise. If confirmed as Assistant Attorney General, I will work to
ensure that the Voting Rights Section of the Civil Rights, Division
receives the necessary resources to vigorously enforce Section 2.
Question 2. Confronted with ``unremitting and ingenious defiance of
the Constitution,'' South Carolina v. Katzenbach, 383 U.S. 3015 309
(1986), Congress enacted the Voting Rights Act of 1965 to ``banish the
blight of racial discrimination in voting.'' Id. at 308. ``Congress
concluded that the unsuccessful remedies which it had prescribed in the
past would have to be replaced by sterner and more elaborate measures
in order to satisfy the clear commands of the Fifteenth Amendment.''
Id. at 309. The Voting Rights Act, in particular Section 5 of the Act,
represent the culmination of Congress' efforts to establish these new
remedies designed to ``rid the country of racial discrimination in
voting.'' Id. at 315.
(a) In 2007, Congress will consider the extension of Section 5 of
the Voting Rights Act, 42 U.S.C. ' 1973c. What is your position
regarding the continued need for this civil rights provision?
Answer. Section 5 continues to be the primary means of ensuring
that covered jurisdictions preserve and promote minority voting
strength. The decision to revisit Section 5 is a legislative
prerogative. I can assure the Senator, however, that, if I am
confirmed, the Civil Rights Division will take seriously its
preclearance obligations under Section 5 for so long as Section 5 is
existing law.
Question (b) What is your position regarding the Department of
Justice's respensibil--ity and authority to enforce Section 5 of the
Voting Rights Act?
Answer. The Voting Rights Act assigns to the Department of Justice
the primary responsibility for enforcing Section 5. The Voting Rights
Sectiun of the Civil Rights Division has authority to review
redistrictingplans submitted for preclearance by covered jurisdictions.
If I am confirmed, I will work to ensure that the Voting Rights Section
receives the resources necessary to vigorously enforce Section 5.
Question 3. Congress passed the National Voter Registration Act of
1993 (the ``NVRA'') to dismantle obstacles to voter registration such
as discriminatory voter purges and complicated, arbitrary voter
registration procedures. The NVRA opened the electoral process by
making voter registration more convenient and by simplifying the
registration process, requiring states to provide voter registration
at, for example, motor vehicle and many social service offices. After
many years of declining voter registration, the NVRA established
procedures designed to encourage voter participation throughout the
country. It is clear these procedures have significantly increased
voter registration.
Indeed, the Federal Election Commission, the agency charged with
reporting the impact of the NVRA on the administration of elections,
reports that in 1996, over 27 million people were registered to vote
pursuant to the statute. See Federal Election Commission's Report to
the Congress on the Impact of the National Voter Registration Act of
1993 on the Administration of Federal Elections, June 1997, at 27.
Specifically, the Federal Election Commission noted that ``[t]he mail
registration provisions of the NVRA [under which voters are permitted
to register to vote by mail] caused very few problems for the States
and accounted for nearly one third of all voter registration
applications from 1995 through 1996.'' Id. at 1: Despite the success
and the relative ease in implementing the statute, there have been
legislative attempts over the years to amend the NVRA to remove many of
the features which have made it most successful or to repeal the
statute altogether.
(a) What is your position regarding these legislative efforts?
Answer. I am not specifically familiar with the findings of the
Federal Election Commission or the legislative efforts to amend the
NVRA. I do agree that increased voter participation is vital to the
continuing health and vibrancy of our democracy.
Question (b) What is your position regarding the Department of
Justice's responsibility and authority to enforce the NVRA? What
priority will you give this responsibility?
Answer. The Department of Justice has authority to pursue
declaratory and injunctive relief under the NVRA, and to prosecute
those found in violation of its provisions. If confirmed as the
Assistant Attorney General for Civil Rights, I would take seriously my
obligation to see that the requirements of NVRA are enforced. I would
make this, along with the enforcement of the Voting Rights Act, a
priority.
Question 4. The Department of Justice will have substantial
responsibilities to enforce Section 5 of the Veting Rights Act, 42
U.S.C. Sec. 1973c, as well as other voting rights provisions
simultaneously. What are your priorities as Assistant Attorney General
for Civil Rights among the various voting rights enforcement
activities?
Answer. Because of the redistricting efforts now ongoing in light
of the 2000 census, reviewing redistricting plans submitted for
preclearance under Section 5 will be an important and ongoing activity
for the Voting Section. The recent allocation of additional lawyers to
that Section will help greatly with this and other voting-related
enforcement efforts. As to the proper order of priority among these
efforts, out of respect for the advice and consent function of the
Senate I have not been involved in the daily operation of the Voting
Section (or the Civil Rights Division generally), and thus I am not yet
sufficiently familiar with the Voting Section's current activities to
say how best to allocate its resources.
Question 5. Over four million Americans are prohibited from voting
in this country because they are ex-felons. Approximately 1.4 million
are African Americans--that's 13% of the adult male African American
population. In Alabama and Florida, about 30 percent of African
American males are prohibited from voting under their state laws.
(a) Do you agree that the impact of felony disenfranchisement on
minority populations is a civil rights issue?
Answer. Any condition or event that adversely affects a protected
class of Americans could be a civil rights issue. This is especially
true when the adverse effect implicates rights as fundamental as the
right to vote. So, yes, I believe this is a civil rights issue.
Question (b) Will you agree to study this issue and consider
undertaking appropriate civil rights enforcement action or proposing
legislative remedies?
Answer. Yes, I believe that this issue is worthy of study. If I am
confirmed by the Senate for the position of Assistant Attorney General
for Civil Rights, I would study the issue and would consider taking
appropriate action. If confirmed, I also would enforce existing civil
rights law without hesitation; proposing legislation, however, is not
my prerogative as a law enforcement official.
Questions Submitted by Senator Schumer
Question 1. If confirmed as Assistant Attorney General for the
Civil Rights Division, will you give the enforcement of the laws
against clinic violence and obstruction the same priority that it has
been given in the last six years?
Sec. Can you commit to enforce FACE, both civilly and
criminally, as vigorously as your predecessors? That is, can
you commit not to weaken the standards of prosecution or to
exclude categorically types of cases that have previously been
successful in the courts?
Answer. I cannot speak authoritatively as to how vigorously the
prior Administration enforced FACE. However, if confirmed as Assistant
Attorney General for Civil Rights, it would be my job to enforce the
nation's laws, of which the FACE statute is an important one. No woman
seeking constitutionally protected services should fear being
threatened or coerced. Accordingly, if the conduct of anyone violates
the law regarding the access of women to reproductive health services,
I would enforce the law vigorously.
As Assistant Attorney General, will you allow
Department of Justice (DOJ) personnel whe have gained expertise
in the area of clinic access to continrle to work in this area
if they so desire?.
Answer. Having served for several years as an Assistant United
States Attorney, and having been a litigator for almost 17 years, I
believe as a general matter that experience and expertise are important
factors in decisions regarding personnel assignments.
Out of respect for the Senate's advice and consent function, I have
not reviewed, nor have had the benefit of, a careful review of the
Department of Justice personnel who have gained expertise in the area
of clinic access. I am unaware of any proposals to reassign such
personnel and have no such plans of my own. It would not be appropriate
for me to make any additional statements, howevef, concerning the
future employment status of Department personnel whom I have not met,
and with respect to whose performance I have no knowledge.
Question 2. The National Task Force on Violence Against Health Care
Providers. In response to violence against reproductive health care
providers generally and the murder of Dr. Barnett Slepian specifically,
Attorney General Janet Reno formed the National Task Force on Violence
Against Health Care Providers in November 1998. Will you work to
maintain the Department of Justice's Task Force on Violence Against
Health Care Providers and work to ensure that it has the resources it
reeds to cont;nue to be effective? Do you anticipate reducing the Task
Force's resources in any way? How and why? (National Task Force on
Violence Against Health Care Providers, Report on Federal Efforts to
Prevent and Prosecute Clinic Violence 1998-2000,1]
Will you commit to maintaining or increasing the size
of the Task Force?
Answer. I believe that inter-agency coordination is an important
part of effective law enforcement efforts. The National Task Force on
Violence Against Health Care Providers has effectively coordinated law
enforcement efforts related to FACE. If confirmed, I would seek to
ensure that it has the resources necessary to continue its work.
One of the Task Force's main objectives is to
coordinate national investigation and prosecution of incidents
of abortion violence, focusing on connections that may exist
between perpetrators of anti-abortion crimes. Will you continue
to support such efforts? [National Task Force on Violence
Against Health Care Providers, Report on Federal Efforts to
Prevent and Prosecute Clinic Violence 1998-2000,5]
Answer. Out of respect for the Senate's role in giving advice and
consent, I have not reviewed or assessed the details of the work of the
Task Force. I do believe that it is important to coordinate enforcement
of FACE on a national level and that the Task Force is an important
vehicle for accomplishing this goal. I would continue those efforts.
Question 3. Crack/Powder: Can you give me your views on the
disparity in sentencing between crack and powder cocaine offenses?
Answer. In United States v. Louis Andrade, I argued that the
cocaine base sentencing guideline is constitutional, and prevailed in
that argument in both the district court (Gertner, J.) and the United
States Court of Appeals for the First Circuit. See 94 F.3d 10 (1st Cir.
1996) (Lynch, J.). I agree with those decisions.
I am concerned about the conditions that contribute to the number
of young men of color who are convicted of selling crack cocaine, and
sentenced under the cocaine base sentencing guideline. I am even more
concerned about the fact that--as reflected in the congressional
testimony in connection with the promulgation of the cocaine base
sentencing guideline--disadvantaged, urban communities of color are
disproportionately (indeed almost exclusively) devastated by the crack
cocaine trade and violence associated with that trade. See United
States v. Singleton, 29 F.3d 733, 740-41 (lst Cir.), cert. denied 1:5
S.Ct. 647 (1994).
Ouestions Submitted by Senator Durbin
Your bio states that as a member of the Boston U.S. Attorney's
office, you were the office's Firearms Prosecution Coordinator, and you
administered ``Operation Triggerlock,'' which is a national firearms
prosecution initiative of the Justice Department. Yet, according to
press accounts, since leaving the U.S. Attorney's office, you have
represented the gun industry in your private practice.
An article in the February 13, 1999, edition of the Boston Globe,
discussed a court case in Brooklyn, New York, brought by families of
shooting victims against gun manufacturers. While that was occurring,
the City of Boston was planning to file a similar lawsuit against
manufacturers. The article states that ``industry advocates say
Boston's proposed suit is purely political.'' It then quotes you as
saying, ```We've got a lower violent crime rate than we've had in 40
years,''' said Ralph Boyd, former assistant US attorney and an adviser
to the American Sports Shooting Council, an industry group. ``It didn't
occur to anybody to sue firearms manufacturers then. This is
preposterous.'''
Question 1. Please explain how you came to represent the American
[Shooting Sports] Council and describe the extent of your activities
with this client.
Answer. I did not represent the American Shooting Sports Council in
any litigation. At the request of one of the members of the Council, I
did make a presentation to members of the Council regarding threatened
litigation against firearms manufacturers by the City of New Orleans,
Louisiana and other cities.
The Boston Globe article also quotes you as saying that the plan by
the City of Boston to sue gun manufacturers is ``taxation and
regulation by litigation. The city has an agenda they can't accomplish
in the legislative forum, so they're going the judicial route to tax a
product some people don't like.''
Question 2. In the area of civil rights, history has demonstrated
that one of the most effective ways to enforce civil rights laws is to
regulate behavior by litigation. There are countless examples where the
federal government has initiated suits against state and local
governments as well as private entities to get them to change their
discriminatory policies. Do you believe that it is appropriate for the
government to ``regulate by litigation''? If no, why? If yes, explain
in what situations do you believe it is appropriate?
Answer. I believe that it is appropriate for the government to
bring lawsuits to redress violations of law, especially where such
litigation is expressly authorized by statute or settled common law
principles. More specifically, it is appropriate for the government to
bring lawsuits to induce local governments or private entities to
eliminate illegal and discriminatory policies. For example, it is
appropriate, and indeed the affirmative duty of the Civil Rights
Division to bring actions to enforce a variety of laws, for example,
the various titles of the Civil Rights Act of 1964 and the Educational
Amendments of 1972, and the Voting Rights Act of 1965.
Question 3. According to press accounts, you have apparently
represented the tobacco industry in your law practice. Please explain
who these clients were, and describe the extent of your activities with
these clients.
Answer. Goodwin Procter LLP has a long standing relationship with
Philip Morris Incorporated. As a partner at Goodwin Procter, I worked
with many other lawyers representing the company in litigation brought
against it and other tobacco companies by the Attorney General of
Massachusetts. In connection with that litigation I deposed state
officials and assisted with general trial preparation. This case was
settled pursuant to a Master Settlement Agreement between the tobacco
companies and the attorneys general of the various litigating states.
Question 4. If you are confirmed to this position, and cases
involving the tobacco industry were to come before you, would you
recuse yourself from those cases?
Answer. Yes, I will follow the Department of Justice Guidelines for
professional ethics and-conflicts of interest strictly and without
hesitation. I understand that these will require my recusal from all
matters involving Philip Morris Incorporated, and from all other
matters concerning the effects of tobacco smoking on health.
Though the vast majority of police carry out their duties
responsibiy and professionally, the insidious practice of racial
profiling continues to undermine public confidence in law enforcement
and damages the credibility of police forces around the country. Most
importantly, racial profiling creates an atmosphere of distrust and
alienation that isolates broad segments of the American population.
As you know, this issue affects federal, as well as state and local
law enforcement activities. In fact, a GAO study of profiling practices
of airline passengers concluded that the U.S. Customs Service was
intrusively searching African American. women and other minorities for
contraband at much higher rates than they searched other segments of
the population.
Specifically, GAO found that African American women were nearly
three times as likely as African-American men to be strip-searched,
even though they were only half as likely to be found carrying
contraband. Furthermore, African American men and women were nearly
nine times as likely, and Hispanic American men and women were nearly
four times as likely, as White American men and women to be x-rayed,
even though they were not more likely to be carrying contraband.
Ironically, the women being targeted were statistically less likely
than other passengers to be found carrying contraband.
I have introduced legislation to specifically address the concerns
raised in the GAO study and help the U.S. Customs Service make more
effective use of its resources, and avoid unwarranted searches.
Question 5. Do you agree that the racial profiling practices of the
U.S. Customs Service should be eliminated?
Answer. No law enforcement agency should improperly target private
citizens based on race, color, or ethnicity. This includes the U.S.
Customs Service. To the extent such practices occur, they should be
aggressively eliminated. While I am not familiar with the GAO study the
Senator is referring to, I would look forward to discussing this issue
with the career attorneys at the Civil Rights Division and taking
appropriate action.
Question 6. Will you support my legislation and urge a favorable
statement of the Administration's position on this proposal?
Answer. If confirmed, I would work to fulfill the President's and
the Attorney General's commitment to take all reasonable and
appropriate steps to end racial profiling. I would welcome the
opportunity to work with you and other Senators in support of this
important effort. At this time, however, it would not be proper for me
to take a policy position on proposed legislation without the benefit
of careful study and consideration of the views of others in the
Department of Justice and the Administration.
Question 7. Do you believe that invidious discrimination, in the
form of racial profiling, occurring at any and all stages of the
criminal justice process (i.e., stops, investigations, arrests,
charging offenses, prosecutions, and sentencings including penalties
and incarceration terms) should be given zero tolerance? What
suggestions or solutions would you recommend to eradicate this
pervasive problem?
Answer. Racial profiling can occur at all stages of the criminal
justice system. Attorney General Ashcroft--at the President's
direction--has made this a top Justice Department priority. I share
that view.
In consultation with the Attorney General, I would suggest that
racial profiling be addressed on several levels. First, we need more
hard data on this issue. We need careful study to determine
definitively the scope, magnitude, permutations and manifestations of
the problem. The Attorney General has asked Congress to enact
legislation authorizing the Department of Justice to collect data for
this purpose, and the Civil Rights Division should be involved in this
effort. Second, the Civil Rights Division should make certain that
specific procedures are in place under which individual complaints of
racial profiling are given expedited review by Division attorneys.
Third, the Division should be ready to work cooperatively with local
law enforcement by providing technical assistance regarding data
collection, data interpretation and analysis, training, policy
development, and community outreach. Where a pattern or practice of
profiling exists and local law enforcement is neither cooperative nor
taking meaningful steps to eliminate illegal practices, an enforcement
action pursuant to 42 U.S.C. Sec. 14141 must remain an option.
Question 8. What are your views on affirmative action, and how do
you define affirmative action?
Answer. Although I have not developed a specific personal
definition, generally speaking I believe deeply in proactive efforts to
break down barriers to opportunity, and also to provide opportunities--
first and foremost--for disadvantaged and needy people, regardless of
race, religion, ethnicity or gender. In my view, assisting peopie in
need and people who are disadvantaged is one of the first obligations
of citizenship, and of government.
Question 9. Do you believe your views on affirmative action are
consistent with those of President Bush and Attorney General Ashcroft?
If not, how do yeu plan to reconcile such conflicting views as the head
of the Civil Rights Division?
Answer. I agree with the President's and Attorney General's
commitments to break down racial barriers, ensure effective access to
opportunity for all people, and to open up opportunities so that no
person is left behind.
To the extent that differences may emerge and manifest themselves
in competing views about legal positions the Department of Justice
should take in a particular case, or with respect to specific
legislation, I would do as I always do; I would marshal every resource
reasonably available to me, and make as well reasoned, sincere, and
respectful argument as I am able in a determined effort to persuade.
Question 10. Do you believe hate crimes are a problem today? Are
the current federal and state laws against hate crimes sufficient to
prosecute all the hate crimes committed in our country?
Answer. Yes, hate crimes are a problem today, and if confirmed I
would work hard to fulfill the Attorney General's pledge to take all
reasonable and appropriate steps to combat them. at the federal level
and where appropriate to assist state and local law enforcement
agencies to combat them at the local level. This would include a
careful study of how best to combat these crimes, and what the federal
government's role should be in achieving this important objective.
Whatever the federal government's ultimate role in addressing this
serious problem, either through further federal legislation,
subsidization of state law enforcement efforts, or both, that role
should reflect--and send a clear and unequivocal message about--the
extent of our unwillingness to tolerate this pernicious form of
criminal activity.
I have not undertaken a multi state review of all of the evolving
state laws against biasmotivated crimes. I am however, familiar with 18
U.S.C. '' 245 (bias-motivated violence directed at school attendance,
seeking public employment, and using public facilities or
accommodations), and 247 (bias-motivated conduct obstructing religious
freedom), and 42 U.S.C. ' 3631 (bias-motivated violence directed at
enjoyment of housing). If confirmed, I would consult with the career
prosecutors at the Civil Rights Division's Criminal Section to
identify, to the extent possible, the circumstances in which hate
crimes are not adequately prosecuted under these and other existing
federal and state laws.
Question 11. Would you favor expanding federal hate crimes
legislation to include vict--ms who Pre targeted based on their sexual
orientation, gender, or disability? Please explain in detail.
Answer. All Americans should be protected by our laws, including
those targeted out of hate. If cop--firmed, I would welcome the
opportunity to work with you and other Senators on these issues. At
this time, however, it would not be proper for me to state a policy
positiop--on such a measure without the benefit of careful study and
the views of others in the Department of Justice and the
Administration.
Question 12. A ban on so-called partial birth abortions has been a
very hot topic in Congress for a number of years. Many of us believe
that this ban should include an exception for the health of the woman,
as well as her life. The Supreme Court in Stenberg v. Carhardt struck
down a Nebraska law that purported to ban these abortions, but which
did not provide an exception for the health of the mother. What are
your views generally on partial birth abortions?
Answer. The Supreme Court addressed the constitutional limitations
on laws banning so-called ``partial birth abortions'' in Stenberg v.
Carhardt. If confirmed, I would follow the law, i.e., the Supreme
Court's instruction on this and any other matter that came before me as
Assistant Attorney General for Civil Rights.
Question 13. If confirmed, will you give the enforcement of laws
against reproductive healthcare clinic violence and obstruction the
same high level of priority that it was given under the previous
administration?
Answer. I cannot speak authoritatively about the leve, of priority
given to such enforcement under the previous administration. However,
if confirmed as Assistant Attorney General for Civil Rights, it would
be my job to enforce the Liation's laws, of which the FACE statute is
an important one. No woman seeking constitutionally protected services
should fear being threatened or coerced. Accordingly, if the conduct of
anyone violates the law regarding the access of women to reproductive
health services, I would enforce the law vigorously.
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