[Senate Hearing 108-517]
[From the U.S. Government Publishing Office]
S. Hrg. 108-517
ENSURING THE CONTINUITY OF THE UNITED STATES GOVERNMENT: A PROPOSED
CONSTITUTIONAL AMENDMENT TO GUARANTEE A FUNCTIONING CONGRESS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JANUARY 27, 2004
__________
Serial No. J-108-54
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
94-082 WASHINGTON : DC
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 35
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho..... 5
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 4
prepared statement........................................... 40
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 45
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 47
WITNESSES
Levinson, Sanford V., W. St. John Garwood and W. St. John
Garwood, Jr. Centennial Chair in Law, University of Texas Law
School, Austin, Texas.......................................... 10
Simpson, Alan K., Co-Chairman, Continuity in Government
Commission, and former Senator, Cody, Wyoming.................. 7
Wasserman, Howard M., Assistant Professor, Florida International
University College of Law, Miami, Florida...................... 11
QUESTIONS AND ANSWERS
Responses of Sanford V. Levinson to questions submitted by
Senators Leahy and Feingold.................................... 20
Responses of Howard W. Wasserman to questions submitted by
Senators Leahy and Feingold.................................... 28
SUBMISSIONS FOR THE RECORD
Gerhardt, Michael J., Arthur B. Hanson Professor of Law, William
& Mary Law School, Williamsburg, Virginia, letter.............. 42
Glennon, Michael J., Professor of International Law, Tufts
University, Medford, Massachusetts, letter..................... 44
Levinson, Sanford V., W. St. John Garwood and W. St. John
Garwood, Jr. Centennial Chair in Law, University of Texas Law
School, Austin, Texas, prepared statement...................... 49
Rotunda, Ronald D., George Mason Univerisity, School of Law,
Arlington, Virginia, letter.................................... 62
Rundquist, Paul, Specialist in American National Government,
Government and Finance Division, Congressional Research
Service, Washington, D.C., memorandum.......................... 65
Simpson, Alan K., Co-Chairman, Continutiy in Government
Commission, and Former Senator, Cody, Wyoming, prepared
statement...................................................... 68
Tribe, Laurence H., Ralph S. Tyler, Jr. Professor of
Constitutional Law, Harvard University Law School, Cambridge,
Massachusetts, letter.......................................... 74
Volokh, Eugene, Professor of Law, University of California, Los
Angeles, Los Angeles, California, letter....................... 75
Wasserman, Howard M., Assistant Professor, Florida International
University College of Law, Miami, Florida, prepared statement.. 77
ENSURING THE CONTINUITY OF THE UNITED STATES GOVERNMENT: A PROPOSED
CONSTITUTIONAL AMENDMENT TO GUARANTEE A FUNCTIONING CONGRESS
----------
TUESDAY, JANUARY 27, 2004
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:35 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn
presiding.
Present: Senators Cornyn, Craig, and Feingold.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. This hearing of the Senate Committee on the
Judiciary shall come to order. I want to start by thanking
Chairman Hatch for scheduling this important hearing in the
full Committee. Last fall, with his blessing, I chaired two
Judiciary Committee hearings on the problems of continuity in
Government with respect to both Houses of Congress, as well as
the presidency.
On September 9, I chaired a hearing that looked at
continuity problems facing Congress, and I was joined by my
colleague, Senator Leahy. On September 16, I co-chaired a
hearing with Senator Lott, Chairman of the Rules Committee, on
problems with our presidential succession law. We were joined
in that effort by a number of distinguished members, including
Senators Dodd, Feingold, and DeWine.
On November 5, 2 months after those hearings took place, I
introduced a constitutional amendment and implementing
legislation. That proposal was designed to address the problems
of continuity of Government facing both Houses of Congress, as
identified by experts during both September hearings.
Today's hearing will begin the process of considering that
constitutional amendment. In addition, today I will introduce
implementing legislation, called the Continuity of Senate Act
of 2004. This bill is cosponsored by Senators Lott and Dodd,
and that, of course, is appropriate because the legislation is
subject to the jurisdiction of the Senate Rules Committee. I
will speak more on that in just a moment.
I want to begin my opening statement by thanking Senator
Leahy and his staff for working with my office to put together
today's important hearing, which is entitled ``Ensuring the
Continuity of the U.S. Government: A Proposed Constitutional
Amendment to Guarantee a Functioning Congress.''
Two days before the 2-year anniversary of 9/11, this
Committee examined potential vulnerabilities of our
constitutional system of government. As painful as it is to
recall the events of September 11, it is a stark reminder of
how close terrorists came that day to decapitating the U.S.
Government.
Were it not for the late departure of United Airlines
flight 93 and the ensuing heroism of its passengers, the
Capitol Building might have been destroyed, potentially killing
numerous Senators and Representatives, and perhaps even
disabling Congress itself.
The American people simply must be able to rely upon a
functioning Congress in the wake of a catastrophic terrorist
attack. Although not in session year around, Congress no doubt
would need to convene immediately in a time of crisis. In the
days and weeks following September 11, Congress enacted
numerous emergency laws and appropriations measures to
stabilize our economy, to address the aftermath of the
terrorist attacks, and to bolster national security.
Yet, today we lack the constitutional tools needed to
ensure continuity of Congressional operations. Under our
Constitution, a majority of each House of Congress is necessary
in order to constitute a quorum to do business. After all, our
Founders understood the need for a nationally-representative
Congress, and rightly so.
That important commitment carries with it certain
vulnerabilities, however. If a terrorist attack killed a
majority of House members, Congress would be disabled until
special elections were conducted around the country, a process
that could take months, according to every election official
who has contacted my office--time that we may not have.
Moreover, if a majority of Representatives is incapacitated,
the House would be shut down until the inauguration of a new
Congress, a delay of potentially as long as 2 years.
The situation could be even more dire in the Senate. The
17th Amendment permits State legislatures to empower Governors
to make immediate appointments to fill vacancies in the Senate,
and every State, except Oregon and Wisconsin, has chosen to do
so. Yet, the Constitution provides no mechanism for dealing
with Senators who are incapacitated, but not killed. If a
biological weapons attack incapacitated a majority of Senators,
Congress could be shut down for 4 years.
Our Constitution does not prepare us for such dire
consequences because our Founding Fathers could not have
contemplated the horrors of 9/11. After all, they lived in a
world free of weapons of mass destruction. They established a
presidency to command an Army and Navy, but no Air Force. They
structured our system of government specifically to disfavor
standing armies.
Yet, the Founders, in their great wisdom, well understood
that they could not predict everything that this new Nation
might someday need, or what the future might someday hold. They
wisely ratified the Constitution specifically because it
included a built-in procedure for amendment or self-correction
in Article V of the Constitution.
Accordingly, last November I introduced a constitutional
amendment and accompanying legislation to ensure continuity of
Congress in a manner consistent with the vision of the
Founders. The amendment, Senate Joint Resolution 23, authorizes
Congress to enact laws providing for Congressional succession,
just as Article II of the Constitution authorizes laws
providing for presidential succession.
The implementing legislation, S. 1820, authorizes each
State to craft its own mechanism for filling vacancies and
redressing incapacities in its Congressional delegation, just
as the 17th Amendment authorizes States to decide how to fill
vacancies in the Senate.
My proposed amendment authorizes the creation of special
emergency procedures that would be available for 120 days, or
longer if at least one-fourth of either House continues to
remain vacant or occupied by incapacitated members.
Any appointment or election of a member of Congress made
pursuant to such emergency powers would last for as long as the
law would allow; that is, until expiration of the regular term
of office or earlier, as Congress may allow. But the emergency
procedures themselves would be available only for the period of
time permitted under the proposed constitutional amendment.
Now, I recognize that some House members favor emergency
interim appointments to ensure immediate continuity of House
operations, while others prefer to rely solely on expedited
special elections. My November proposal takes no side in that
debate.
Some States, in order to expedite the conduct of special
elections, may be prepared to adopt Internet voting, enact
same-day registration laws, or abandon party primaries, while
other States may be concerned that expedited special elections
are undemocratic or will disenfranchise military voters. Under
my approach, each State would make its own choice.
Moreover, today I will introduce new implementing
legislation focused exclusively on the Senate, called the
Continuity of the Senate Act of 2004, cosponsored by Senators
Lott and Dodd. If House members decide to rely solely on
special elections to cure continuity problems in their chamber,
I will not do anything to stand in their way. By the same
token, the House should not prevent Senators from resolving
continuity problems in this chamber. This proposal gets the job
done, while respecting the prerogatives of each House of
Congress. It deserves to be enacted into law.
Twenty years ago, after nearly killing Prime Minister
Margaret Thatcher and leading members of her government, IRA
terrorists issued a chilling threat. They said, remember, we
only have to be lucky once; you have to be lucky always. The
American people should not have to rely on luck. They deserve a
constitutional system of government that is failsafe and fool-
proof. Nobody likes to plan for their own demise, but failure
to do so is not an option. We must plan for the unthinkable
now, before our luck ever runs out.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
With that, I would like to recognize the Ranking Member of
the Subcommittee on the Constitution, which I chair, Senator
Feingold, for any remarks he might make, and also to say thank
you to Senator Craig for his attendance at this important
hearing today.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. First, let me
welcome the witnesses, and especially my friend and former
colleague, Senator Simpson. It was such a pleasure to serve
with him.
It is good to see you again and I look forward to hearing
from you again.
Mr. Chairman, I would like to commend you for your work on
this issue. I appreciate your initiative and leadership. You
and your staff have put a lot of thought and effort into this
and I think it shows.
In the 2 years and 4 months since the attacks of September
11, we have been repeatedly reminded that there are terrorists
working everyday to attack our country wherever it is most
vulnerable. The threats we face are very real, and certainly a
massive attack on the Federal Government would achieve many of
the terrorists' goals.
Of course, our first duty as legislators is to do what we
can to protect the American people, but we must also recognize
the possibility of future terrorist attacks and plan for them.
Discussions about the continuity of Government and about
various hypothetical scenarios that could occur in the wake of
a catastrophic terrorist attack may seem to some abstract and
far-fetched. But in the terrible event that any of these
nightmare scenarios should come true, many lives depend on the
ability of the legislative and executive branches to
effectively respond.
As you know, Mr. Chairman, I approach all proposals to
amend the Constitution with great caution. As the charter that
provides the structure and basic rules for our entire system of
Government, the Constitution strikes innumerable balances we
must be wary of disrupting. Any changes in this fundamental
structure can have far-reaching consequences, and
constitutional amendments are immensely difficult to undo.
For this reason, whenever there is a proposal to amend the
Constitution, I believe we should ask first whether the problem
can be solved with legislation rather than a constitutional
amendment. If any of the witnesses believe there are proposals
other than a constitutional amendment that would adequately
protect the continuity of our Government, and in particular the
legislative branch, I would be particularly interested to hear
them say so.
But I do recognize that there are some problems that
probably can't be solved by legislation, and that providing for
the continuity of Congress may well be one of them. Mass
vacancies or incapacitations in the House or Senate could
seriously obstruct Congress from responding to the crisis
created by a catastrophic terrorist attack.
Today, we face the threat of attacks on a scale that would
have been unimaginable not many years ago. And we know,
historical events can sometimes alert us to vulnerabilities or
flaws in our constitutional structure. The assassination of
President Kennedy led to the adoption of the 25th Amendment. It
may well be that the attacks of September 11 should lead to the
adoption of the 28th Amendment.
The goal of this amendment is unquestionably laudable and
the structure it proposes may well prove to be the best option.
A lot of hard work has already been done here and I look
forward to working with you, Mr. Chairman, to find the best way
to protect our democracy. I am grateful again to our panel and
look forward to hearing from them.
Thank you, Mr. Chairman.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Senator Cornyn. Thank you, Senator Feingold, for your
comments.
Senator Craig, we would be pleased to hear any opening
comments you might have.
STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM THE STATE OF
IDAHO
Senator Craig. Mr. Chairman, I will be very brief. I have
to chair another hearing in a few moments, but I am so pleased
that our former colleague and my neighbor out West, Al Simpson,
is here, along with his wife. We still gain on a regular basis
the wisdom of Senator Simpson, often through the media. It
causes us to pause and react.
But let me give for the record a personal experience that I
think clearly recognizes what you are trying to do, Senator,
with S.J. 23 and S. 1820. For those of us who were here on 9/
11, it was obvious in a very short period of time how
unprepared we were to handle an emergency of the kind that we
were at that time involved in, or how impossible it would have
become had this area or portions of this campus been struck by
an aircraft of the magnitude that occurred at the Pentagon and/
or certainly at the Trade Center.
I and others evacuated the Hill. I live on the Hill, so I
went home and got on the phone and started calling around my
State of Idaho to calm nerves and to give impressions of what
was going on. Late in the afternoon, it became obvious to me
that something needed to be done here as a core activity. I was
then part of the elected leadership, but I was one rung below
those who were evacuated to Virginia, to our undisclosed
location.
But I happened to have had that phone number, so I and
other leaders and other members, House and Senate, gathered at
the Capitol Hill Police Station and we began to express our
concern to the sequestered leaders how important it was that
the Congress immediately in some form make an expression. We
were encouraged to go home, not to assemble. We still did not
yet know the magnitude of the threat that might have been
ongoing.
Our leaders were sequestered and they did not feel or
understand the emotion that was sweeping across the country at
that time, I believe. We were watching television. They were
not. We were calling home. They were not. Finally, I and
others, Democrat and Republican, said no, we are not going
home; we are going to assemble.
We were told by the leaders that they would be returning to
the Capitol grounds at a certain hour to hold a press
conference. We said, fine, we will meet you there. We did. You
all saw that. You all saw us standing on the steps of the
Capitol as our leaders came back and expressed their concern
and what we would be doing in a public press conference. And,
of course, then we all broke into a song of unity, our National
prayer, ``God Bless America.''
That was probably, in that day, the most singly important
thing that the Congress of the United States did for the psyche
of the American people. It was played hour after hour for a
good number of days following, just that simple act of the
Congress standing on the steps of this Nation's Capitol singing
this Nation's prayer. It was a statement of unity of a kind
that could have been expressed no other way.
My expression here today is to suggest that a Congress that
can be, if damaged, reconstituted very quickly is critical to
the character, the strength, and the stability of this Nation,
there is no question about it, because for days afterwards, if
not for months, I received phone calls and letters of
expression from people who had witnessed all of us collectively
on the steps of the Capitol that day.
I then began to recognize how critically important it is
that there be continuity, and that it be seen and heard and
understood clearly by the American people because if, for
instance, the worst would have happened, to see our Capitol
struck would have been a phenomenally devastating blow on the
psyche of the American people, let alone our systems of
government.
So, anyway, I am pleased you are doing this work. I agree
with Senator Feingold. I have always been extremely cautious in
how we approach amending our Constitution, but you may well be
right. This may be an area where we need to be clear, precise,
and allow for this kind of continuity to go forward.
I thank you for your work, and to all of our panelists,
thank you for coming today.
Senator Cornyn. Thank you, Senator Craig, for your
comments.
We are fortunate to have before the Committee today a
distinguished panel of witnesses. We have asked them to come
here to discuss, as Senator Feingold stated, the need for a
constitutional amendment to ensure continuity of Congressional
operations in the wake of a catastrophic terrorist attack and
to determine whether one particular proposed amendment, Senate
Joint Resolution 23, fits the bill.
As others have alluded to, Senator Alan K. Simpson, of
course, needs no introduction to this body or to this
Committee, but I will give him a short one nonetheless. Senator
Simpson served in the United States Senate from 1978 to 1997,
acting as the Minority Whip for ten of those years. He was an
active and distinguished member of this Committee, as well as
the Finance Committee, the Environment and Public Works
Committee, and the Special Committee on Aging. As a veteran who
served in Germany during the final months of the Allied
occupation, he chaired the Veterans Affairs Committee.
Before his election to the U.S. Senate, Mr. Simpson served
in the Wyoming House of Representatives, rising to the office
of Speaker in 1977. Following his tenure in the U.S. Senate,
Senator Simpson served as Director of the Institute of Politics
at Harvard University's John F. Kennedy School of Government
from 1998 to 2000. Today, he is a visiting lecturer at the
University of Wyoming and a partner in a Washington-based
government relations firm and a Denver-based law firm.
Of course, Senator Simpson co-chairs with Lloyd Cutler the
Continuity of Government Commission, a bipartisan blue-ribbon
commission of distinguished public servants established by the
American Enterprise Institute and the Brookings Institution to
examine the problems of continuity of all three branches of
Government.
Senator Simpson keeps a very busy schedule. I know this
because we wanted him to testify at our hearing last September.
He wanted to, as well, but unfortunately we could not work out
the timing. So I am thrilled that the timing has worked out
today and I am pleased that he is here to share his expertise
based on years of experience and careful study.
I am pleased to introduce from my home State of Texas
Professor Sandy Levinson, of the University of Texas Law
School, in Austin. Professor Levinson is the W. St. John
Garwood and W. St. John Garwood, Jr. Centennial Chair in Law
and Professor of Government, and is an internationally
recognized expert in constitutional law.
He is the author of numerous books and law review articles,
including ``Constitutional Faith: Written in Stone,'' and of
particular relevance to today's topic a book entitled
Responding to Imperfection: The Theory and Practice of
Constitutional Amendment.
He received his bachelor's degree from Duke, a Ph.D. from
Harvard, and a law degree from Stanford.
Professor Howard Wasserman completes our panel. He is an
assistant professor of law at Florida International University
College of Law, in Miami, and previously served as a visiting
assistant professor of law at Florida State University College
of Law and a law clerk for Chief Judge James T. Giles, of the
United States District Court for the Eastern District of
Pennsylvania, and Jane R. Roth on the United States Court of
Appeals for the Third Circuit.
A graduate of Northwestern Law School, Professor Wasserman
has published numerous articles on the subject of continuity of
government. He testified last September at the joint hearing of
the Senate Judiciary and Rules Committees in favor of reforming
the presidential succession law.
Professor, it is good to see you again, and thank you all
for being here today.
Senator Simpson, if I may start with you, please, we would
be happy to hear your opening statement.
STATEMENT OF HON. ALAN K. SIMPSON, CO-CHAIRMAN, CONTINUITY OF
GOVERNMENT COMMISSION, AND FORMER UNITED STATES SENATOR, CODY,
WYOMING
Mr. Simpson. Well, thank you very much, Senator Cornyn.
This is a treat to see my old friend, Russ Feingold. We served
together, enjoyed each other's company, and our spouses, too. I
always had great regard and respect for him.
I did not get the opportunity to serve with you, but I can
tell you you are a leader especially on this issue, and I
admire that very much. And Larry Craig, the Lion of the West,
an old friend.
You said you were doing this with Orrin's blessing and, of
course, we always needed that here in this chamber. Orrin would
give his blessing to all of us. As he would say, would you
please--no, I won't go into it.
[Laughter.]
Mr. Simpson. And then, of course, Pat Leahy and his staff
whom I see today, and staff around the room; to all of you,
greetings. I know what you are here for, to sort it all out and
run back, all of you in the back there saying I heard Simpson
and Sandy and Howard testify; I think they are all goofy. I
know how it works, but listen carefully to this one because
this is an important issue. This one will not go away.
So it is fun to come into the lion's den here, familiar
surroundings, 18 years here in this Committee. And, of course,
I am going to do something that I remember always doing. I ask
that the full text of my remarks be entered into the record.
Senator Cornyn. Without objection.
Mr. Simpson. Isn't that wonderful the way I did that? We
always used to do that from up there, but I wanted to get ahead
and I have done that. Thank you, Senator.
My wife of 50 years is here. It is hard to believe that she
would have stuck it out that long. She spent a few hours in
this room, and she has been a great helpmate of mine. You
cannot succeed in politics without a supportive spouse, so she
is right there. Yes, she is. I brought her for defense
purposes, because we left Washington undaunted and unindicted,
and it was a wonderful experience. Now, I am going to take four
more minutes. I know how this game works. I thank you.
The Continuity of Government Commission is a no-nonsense
group. Let me just tell you quickly who is on it because you
don't read the letterhead. Lloyd Cutler and I co-chair it: Phil
Bobbit, Ken Duberstein, Tom Foley, Charles Fried, Newt
Gingrich, Jamie Gorelick, Nick Katzenbach, Judge Robert
Katzman, Lynn Martin, Kweisi Mfume, Bob Michel, Leon Panetta,
and Donna Shalala.
We have held two full-day public hearings, heard testimony
from all sorts of groups, didn't want to go really to a
constitutional amendment, but found ourselves looking clearly
back into it because of incapacitation and other issues.
The reason is clear; you have all stated that. 9/11
happened. It was not fiction, it was not a book. They will come
again. The terrorism threat is not behind us. The President
said at the State of the Union, ``It is tempting to believe the
danger is behind us. That hope is understandable, comforting,
and false.'' That is exactly what it is.
The fourth plane, from all of the things we found through
our investigation and the investigation of select committees,
was headed for this Capitol, and the brave passengers took it
down. The House was in session that morning. The Senators and
House members were all over this campus, as Larry refers to it,
and it is true.
The Capitol Dome is made of cast iron. If that baby had hit
that dome, the stuff would have trickled through the whole area
in a molten form. I am not trying to be dramatic, so I will
stop right there. But let me tell you that was real.
We identified these problems in our hearings. It would take
months to fill vacancies in the House because you have to have
a special election. The Senators can be replaced in 48 hours,
and many of us have been, and the Governors do that. But it
takes an average of over 4 months to fill vacant seats in the
House of Representatives, and if there were more than 50-
percent vacancies there would be no quorum.
They have a very lenient quorum rule in the House, which is
something about ``living,'' which is an interesting part of it.
They could get a smaller group, but imagine what would happen
if the New York delegation would be the only one that survived.
That could happen.
There is the light. Anyway, I will come back to
presidential succession in later hearings, but it is the issue
of incapacitated members. They cannot be replaced by election
because there is no vacancy. You can't replace a person who is
incapacitated because they may come back. So that is really a
problem.
We recommend the constitutional amendment. It would operate
when there are many deaths, but if somebody can hear us over in
the House, the word is ``temporary.'' We are talking about
temporary; everything is temporary here. It is just too long to
go 45 days without having Congress in session.
The real difficulty for us is not here in this body; it is
in the House of Representatives. I do respect them greatly and
I know Chairman Sensenbrenner very well. He and I have worked
together. I have had a very enjoyable relationship. But I can
tell you if the argument is continued in the House that this is
simply the People's House and the fact that every member of the
House has been directly elected by the people and that if we do
something with the Constitution it will injure the, quote,
``character of the House,'' I will tell you what will destroy
the character of the House--220 of them lying in an alley out
here incapacitated with burns, or dead. That would really
change the character of the House.
I would just say to you that I am astounded at the reaction
in the House, especially the chairman, a member of my party. It
is almost embarrassing. It is almost as if this commission were
treated rudely. We have been treated rudely by the Chairman not
listening to one shred of what we are saying, and no
alternative procedures except one that keeps getting tossed out
that you have defined. I hate to be that critical, but I will
tell you I would be embarrassed.
And I will tell you another thing politicians don't like,
and that is ridicule. And if something else happens in this
country, they are going to come back and say where were you?
Were you fast asleep? Why didn't you do something? You knew.
Where were you? How could you?
That is all I have to say.
[The prepared statement of Mr. Simpson appears as a
submission for the record.]
Senator Cornyn. Thank you, Senator Simpson.
Professor Levinson, we would be glad to hear your opening
statement.
STATEMENT OF SANFORD V. LEVINSON, W. ST. JOHN GARWOOD AND W.
ST. JOHN GARWOOD, JR. CENTENNIAL CHAIR IN LAW, UNIVERSITY OF
TEXAS LAW SCHOOL, AUSTIN, TEXAS
Mr. Levinson. Thank you. I won't repeat everything that is
in the written statement. I do want to express, though, both
professional and personal honor and pleasure in being here. The
professional satisfaction comes from what you mentioned; that
is that constitutional amendment has been a long-term interest
of mine. Indeed, I am co-teaching a seminar at the Yale Law
School this semester on constitutional design. But there is
also a distinct personal pleasure, not simply that you are the
Senator from my home State, but that we are of different
political parties, for this seems to be an issue that is
without the slightest partisan tilt.
And I am delighted to have the opportunity to meet Senator
Simpson, whom I have long admired for his candor, which was
revealed this morning as well. Even though I have often
disagreed with him politically, I am delighted to appear before
you because I think this is an issue which really should bring
all of us together as Americans and not as Democrats or
Republicans.
I want to address the issue that Senator Feingold raised,
which is the reluctance to amend the Constitution.
Senator Cornyn, you mentioned that I edited a book called
Responding to Imperfection. That title comes from a letter
written by George Washington to his nephew, Bushrod, who would
later serve on the Supreme Court of the United States.
Washington, of course, was, to put it mildly, no minor
figure either in terms of our history or obviously the
particularity of the Constitution itself. He was the President
of the Constitutional Convention. Without Washington's support,
the Constitution never would have been ratified.
What he wrote to his nephew, though, was as follows, ``The
warmest friends and the best supporters the Constitution has do
not contend that it is free from imperfections.'' Fortunately,
when inevitable imperfections do manifest themselves, ``there
is a Constitutional door open. The People, (for it is with them
to Judge) can, as they will have the advantage of experience on
their Side, decide with as much propriety on the alterations
and amendment which are necessary.''
Should the point not already be clear enough, Washington
went on to say that, ``I do not think we are more inspired,
have more wisdom, or possess more virtue, than those who will
come after us.''
I emphasize in my testimony the words ``the advantage of
experience.'' Experience was crucially important to the framing
generation. One can find similar statements in the Federalist
Papers written by Hamilton and Madison. And it dishonors the
Framers of the Constitution, and it really dishonors the
document they handed down to us to assume that they thought
that they had drafted a perfect document and that there is
nothing to learn from experience.
September 11 obviously should have served as the wake-up
call that Senator Simpson mentioned, and it does seem to me the
Constitution is grievously imperfect with regard to the kinds
of contingencies that Senator Simpson mentioned.
The Constitution recognizes the possibility that there will
be a vacancy in both the presidency and vice-presidency, and
therefore the Constitution explicitly authorizes Congress to
pass a succession in office act. I commend you also for your
leadership in raising questions about the succession in office
act. But not only is that not a topic before us this morning,
it is also a topic that clearly can be resolved by legislation
because the Constitution specifically authorizes Congress to do
so.
We now recognize as a result of September 11 and the kinds
of considerations raised by Senator Simpson and the project
that he co-chairs that there are the same possible
contingencies with Congress as there are with the presidency.
And I believe that most constitutional specialists would agree
that Congress does not have the authority simply to pass
corrective legislation.
The Constitution very clearly says that succession to the
House is by election and by no other means. That is not a
problem with Senators, except in the altogether foreseeable
contingency that you and Senator Simpson mention, which is
incapacitated Senators. And then the 17th Amendment, I think,
is really quite useless.
It seems to me, to take another term from the Constitution,
that if a constitutional amendment is ever necessary and
proper, it is in this instance where there is a contingency
that we hope is remote, but it is certainly foreseeable. One
buys insurance and writes wills even when one is young on the
basis of what one hopes are remote contingencies, but it is
irresponsible to assume they can never happen. We, I believe,
know this can happen. The Constitution is deficient with regard
to allowing us to respond with the kind of alacrity the country
would need.
There is another consideration, if I can take literally 20
more seconds. I spell this out more in the written testimony.
If Congress cannot function, it is not that nothing will
happen; it is that inevitably what would arise is a
presidential dictatorship, as happened arguably with Abraham
Lincoln when Congress was not in session during the early days
of the war.
It seems to me again that all Americans, regardless of
party, regardless of whether they are liberal or conservative,
must agree on the essential importance of a functioning
Congress, and that this amendment is an important and necessary
first step toward assuring that.
Thank you very, very much for inviting me and thank you
very much for taking the lead on this issue.
[The prepared statement of Mr. Levinson appears as a
submission for the record.]
Senator Cornyn. Thank you, Professor Levinson, for your
testimony and your generous remarks.
Professor Wasserman, we would be pleased to have your
opening statement.
STATEMENT OF HOWARD M. WASSERMAN, ASSISTANT PROFESSOR, FLORIDA
INTERNATIONAL UNIVERSITY COLLEGE OF LAW, MIAMI, FLORIDA
Mr. Wasserman. Thank you, Chairman Cornyn, and thank you
for inviting me to address this Committee and to participate in
this distinguished panel.
What I referred to in my written statement as the Cornyn
Plan--a combination of an amendment and some implementing
legislation--is the exact proper approach to the question of
continuity of Congress because it utilizes a short, broad, and
very general constitutional amendment that vests in Congress
the power to provide by law appropriate procedures in order to
replace large numbers of incapacitated, disabled, or deceased
members of both Houses of Congress, and thereby to ensure that
we have a functioning Congress and a functioning Government, as
that Government is imagined under a system of separation of
powers.
What is important about the amendment is that it punts the
entire issue to Congress to then deal with in its discretion
through the ordinary legislative process. And it is that
process which is far more deliberative and can be far more
detailed where the real details and the real vagaries of
constitutional continuity can be spelled out. So as you
indicated in your opening remarks, even if there is a
difference between the House and Senate as to what the proper
procedure is, the amendment is still a good idea just to lay
every possibility out on the table.
I would draw the Committee's particular attention to the
absolute necessity of the amendment with regard to
incapacitations or disabilities, because the Constitution
nowhere mentions and nowhere provides any procedures for
dealing with the disability of individual legislators.
This contrasts with Article II and the 25th Amendment which
deal specifically with presidential disability and delegate to
Congress power to deal with that situation. The triggering
language in Article I, section 2, and the 17th Amendment as to
Congress is ``when vacancies happen,'' and in the absence of a
vacancy there can be no election, there can be no appointment,
and there can be no other procedure of any kind established to
put a member in that seat.
The two leading Supreme Court decisions on the question of
Congressional qualifications are Powell v. McCormick and U.S.
Limits v. Thornton. Those two cases together can be understood
as standing for a general rule that once a member has been
chosen and qualifies, she must be sworn and seated.
Except for the very limited circumstance where a two-thirds
super-majority of one House can expel that member, neither
Congress nor the States has any power to prevent that member
from taking her seat or from remaining in that seat for the
duration of her term.
Put slightly differently, a member chosen and seated at the
beginning of a Congress serves 2 or 6 years, depending on the
House, unless and until she resigns, dies, or is expelled.
Absent that vacancy, neither Congress nor the States presently
has any constitutional power to fill that occupied seat even
temporarily. The import of the amendment therefore would vest
this power in Congress or, as under your legislation, to some
delegatee of Congress.
The last point on this, though, is to emphasize that a pure
reliance on expulsion is not the answer, for two reasons.
Number one, at some level it seems unfair to expel a faithful
public servant merely because she is incapacitated for what may
be as short as a week or some relatively short period of time.
The broader problem is expulsion is simply procedurally
impossible because it requires a two-thirds super-majority and
there has to be a quorum in order to carry out the expulsion
procedures. And if there can be no quorum to do ordinary
business because of the number of incapacitated members, there
cannot be a quorum to carry out the expulsions.
The last point I want to make actually focuses on the
implementing legislation, and I discuss this further in my
written statement. It is just to suggest the change that any
implementing legislation make it mandatory that the States
enact these procedures by changing the language ``may enact''
to ``shall enact.''
The one thing that we do need is some level of national
uniformity and national certainty, and any delays by the
States, even unintentional, in implementing and carrying out
these procedures could threaten the ability of Congress either
to function at all or to force Congress to function in a very
small, skeletal, unrepresentative fashion. Congress can avoid
that problem by requiring that the States implement and carry
out these necessary procedures.
With that change, I express strong support for both
elements of the Cornyn plan, and I urge this Committee and this
Congress quickly to consider and enact both elements. Thank you
again for the opportunity to address this panel.
[The prepared statement of Mr. Wasserman appears as a
submission for the record.]
Senator Cornyn. Thank you very much, Professor Wasserman,
and thanks to all of you for your opening statements. I know
Senator Feingold and I each have some questions for you.
If I may start perhaps with Senator Simpson, 2 days after
9/11 Congress approved legislation expediting benefit payments
to public safety officers who were killed or injured in the
line of duty during the terrorist attacks. Three days after 9/
11, Congress approved a $40 billion emergency supplemental
appropriation bill for recovery from and response to the
attacks, as well as legislation authorizing the use of military
force.
A week later, Congress approved additional legislation both
to stabilize and secure our airports and to provide
compensation for the victims of 9/11. In subsequent weeks,
Congress enacted several other bills and appropriations
measures to bolster national security and upgrade our
capabilities to combat terrorism.
Indeed, week seven, which was right about the time, I
believe, of the prevailing House proposal for replacement of
absent members or disabled members by virtue of expedited
elections, Congress passed the USA PATRIOT Act to deter and
punish terrorists in the United States and around the world,
and enhance law enforcement and investigatory tools.
As my question suggests, we did a lot of things; this
Congress did a lot of things in the aftermath, the 45 days
after 9/11, which I believe were important to not only
reassuring the country, but to providing for the victims and
their families, as well as authorizing the President to use
military force against those who played a role in the terrorist
attacks.
Of course, unless we have a means of rapidly replacing
killed or disabled members of the House, none of that could
have happened. Even under, I believe, the chairman's proposal,
Chairman Sensenbrenner's proposal, it would be a 45-day
election. And certainly a newly-elected member of the House
would find it difficult to get to Washington and begin
functioning as a fully effective member of Congress in such a
short time.
But we have two bodies of the Congress, the House and the
Senate. The House, as you noted in your comments, Senator
Simpson, very jealously guards its prerogative to make
provision for itself and is not particularly welcoming of the
other body to do it for it.
I would if you could just perhaps, in your wisdom of 18
years in the Senate, provide any suggestions or other insight
about how you might approach such apparently conflicting views
on how the House ought to deal with succession.
Mr. Simpson. Well, Senator, you can see how helpful I have
been already in that area. Sweeping things were done by the
Congress in those days, within days. The American public was
heartened by that. I am one of those people who lives in Cody,
Wyoming, and said what are they going to do? And you did
marvelous things, not just symbolism, but legislatively.
Imagine if those legislative acts had to wait 45 days for
any of them to pass. I will tell you the American people would
be offended. They would say who threw the sand in the gears?
Who did this? And I will tell you we would know who did it.
This cannot stand. You can't do this.
There is a lot of fine bipartisan support in the House,
Congressman Baird, Democrats and Republicans alike over there
who are ready to do something. I think of my old pal John, of
the Judiciary Committee, and there are so many over there who
would listen to us. I am just astounded that with all this fine
bipartisan support--and I think, as I say, you could get it
from John Conyers.
I will tell you what we need to do. We need to have the
Chairman open his door and listen. We will bring the whole
commission in. He has got a lot of pals here and a lot of fine
Americans are here. I would like to have him see us and come.
We have been rudely treated, and I think that is a shame. It
isn't good.
When I had a situation with Tip O'Neill. I went to see him.
He said, Simpson, what are you doing in here? I said here I am
and I didn't bring any staff with me. I just dragged my own
brains in here; now, if you will just listen. He would say,
okay, I will listen. Then he would light a cigar and pull up
his sleeves, and then 1 day he said, Simpson, I am going to do
what you are suggesting, but if you tell anybody, you will
never see that legislation again.
I never told my staff, I never told anybody. Days before
the deadline, he put the immigration bill on the floor of the
House and got torn to bits by Fritz Mondale and Gary Hart, who
were both running for President, on an issue which was so hot
with Hispanics, and so on. And I think he told Fritz or Gary,
look, you run for President, I will run the House. And that was
Tip.
So all I want is the same courtesy to sit and describe to
the gentleman, whom I have enjoyed and have helped--I remember
bringing him to a hearing once where he couldn't even get in.
And I said to Peter Rodino, let Jim Sensenbrenner in this room.
He said, no, I don't need to listen to anybody in the minority.
I said, yes, you do; you can't run a shop like that. So Peter
opened the door, and I don't think Jim had ever been in that
sacred chamber. If you can't do that kind of work, then the
American people are appalled.
All I am saying is it is no time for rigidity and
stubbornness and not listening, not on an issue like this. So
that is what I would do, and I am sure that Jim's staff is
sitting here scratching themselves, staring off into the East,
wondering how in God's name Simpson could have erupted like
this. So have old Jim invite us in and we will all come in and
just sit around for a while and chew the fat.
Senator Cornyn. Professor Levinson, you heard both Senator
Craig and Senator Feingold allude to a state of mind that I
think a lot of members of Congress have when it comes to
constitutional amendments, and I appreciate in your opening
statement you directly took that on.
There is a tremendous reluctance in this body to deal with
constitutional amendments. Of course, as Senator Feingold said,
if this amendment does pass, it would be number 28. So we
haven't been promiscuous in the way we have amended the
Constitution by any means in this Nation's history. But I
believe that this is one of those, and as you pointed out, one
with bipartisan support, that in some ways is not thrilling
enough to command a lot of attention. On the other hand, when
you get a proposed constitutional amendment that does get
people's blood up, it is hard to pass a constitutional
amendment there, too.
I, for one, worry that if the people are unwilling to
consider amending our Constitution that there are occasional
Federal judges who are happy to do that through judicial
decision. And I frankly prefer the former rather than the
latter. Now, this is not one of them, probably, where a judge
would assert him or herself, and certainly not until after we
have already suffered a terrible loss.
Could you just expand a little bit on your point of view
about how you think this Committee should approach
constitutional amendments? Do you think there is any sort of
objective line of demarkation between those kinds of amendments
that are worthy of consideration and those that should not be
considered, and why do you think this is one of them?
Mr. Levinson. Well, I should confess that I am one of those
people who think that the United States Constitution is much
too difficult to amend. One of the articles in the book
Responding to Imperfection, by another Texan, Don Lutz, who
teaches at the University of Houston, looked at the United
States Constitution not only in comparison with about 35 or 40
national constitutions around the world, but also with the 50
State constitutions.
The United States Constitution is the most difficult to
amend constitution in the world. That record had been held by
the former Yugoslav Constitution, but we now hold it. This
means, among other things--I think you are absolutely right--
that a lot of amendment--what in other countries might have
taken place through formal, self-conscious amendment--takes
place not simply through judicial innovation, but also frankly
through Congressional innovation and executive branch
innovation because there is no good alternative.
I agree with you that if a matter is truly controversial,
it really is next to impossible to amend the Constitution of
the United States. But the point is that this ought not be
controversial. I just literally can't understand why somebody
being presented not only with the abstract possibilities, but
also the reality of September 11 would say, well, this just
could never happen and I am opposed to amending the
Constitution because it would lead to bad things.
I can see reasons to disagree about implementing
legislation, on what procedures should be set up. I would have
Congress take a much stronger role, for example, rather than
simply leaving it to the States, for reasons that have already
been indicated.
But it does seem to me that the history of constitutional
amendment, at least, since the Progressive era has been that it
is extremely difficult to get through amendments on issues that
really divide the people politically.
But there have been a number of amendments--the 25th
Amendment is a fine example where people realized there is a
problem. The only thing worse than President Kennedy's
assassination would have been if he had lingered. I think what
provoked the 25th Amendment was the realization that we were
totally unequipped to handle that possibility.
We could handle assassination very easily. The Constitution
provided for a successor. But the problem that you and Senator
Simpson are focusing on we are unequipped to handle. It seems
to me that there is a track record; that one can pass
amendments dealing with these kinds of important issues that
ought not divide us politically. It seems to me if the
Constitution is ever worth amending, this is one of those
situations.
Senator Cornyn. Thank you very much.
Professor Wasserman, some have suggested that no
constitutional amendment is needed to deal with incapacitated
members because members can sign a power of attorney or somehow
designate someone to serve on their behalf if they were
incapacitated.
In your view, would that solution work? Indeed, is it even
constitutional? Would it be okay for me to sign a power of
attorney and say if I am incapable of serving, then my wife or
perhaps a friend or some constituent ought to be able to vote
in the Senate on my behalf?
Mr. Wasserman. I don't believe so. I think the language is
pretty clear as to both the House and the Senate as to how
members can be chosen initially and as to how they can be
placed in vacant seats. Other than election at the initial
choosing and then election in a vacancy in the House and
appointment for a vacancy in the Senate, I think that exhausts
any possibilities.
I will say I think part of the resistance particularly in
the House to the notion of appointments is a sense of distrust
of Governors, the risk of partisanship in the making of the
appointments. I think one workable idea--and again a
constitutional amendment would be necessary as to the House,
but one workable possibility to overcome the concerns of
partisanship is to have each member draw up a list of preferred
successors, and the appointment, under the 17th Amendment, by
the Governor, if we can get a 28th amendment via the Governor
with regard to the House, and have the appointment made from
one of those preferred successors. So you have some sense of
the popular imprimatur from the elected member on whoever her
successor will be.
Number one, the appointing authority should be someone
other than the successor. And, number two, it is absolutely the
case that some amendment is necessary because the power simply
to unilaterally select one's own successor is not allowed by
anything in the text of the Constitution and frankly is an
undemocratic concept.
Senator Cornyn. Senator Simpson, do you have any comments?
Mr. Simpson. The real key here is ``temporary,''
``temporary preferred successors.'' This is the key, and the
House doesn't seem to hear this that everything we are talking
about is temporary. Do this maybe for 45 days. After 45 days,
have whatever elections. I think Howard counseled me on that
one before. The word here throughout is ``temporary,''
``temporary,'' ``temporary.''
Mr. Wasserman. I agree. I omitted that word, but yes. I
mean, any of these appointments, even Senate appointments, in
the context of this worse-case scenario should be somewhat more
limited in time.
Senator Cornyn. So I gather, Senator Simpson, it would be
possible to meld both the current approach in the House,
Chairman Sensenbrenner's approach to have a 45-day election
period, and the approach that you propose of a temporary
appointment to somehow have the best of both worlds, I guess,
if I understand what you are saying.
Mr. Simpson. Well, we have thought of everything and had
the hearings to produce that with this group of commissioners.
And we just keep coming back to the absoluteness of a
constitutional amendment, but there are ways to go about it.
One of the ones was that when you run, you designate a
person on the ballot who, if there is a vacancy or
incapacitation, that person will take over your office
temporarily until the next direct election. That was discussed.
A lot of those things have been discussed. We are not hard-
nosed on it, but we don't like to get run down the track with
tar on us, you know, and with feathers, too. That is not good.
Senator Cornyn. Well, as much of a challenge as it is to
propose a temporary appointment, I wonder whether the idea of
candidates designating a successor on the ballot would create
other resistance. I was reminded when Professor Wasserman was
talking about trying to depoliticize the selection of a
temporary successor the old saw that you can't take politics
out of politics.
It is kind of like when people talk about redistricting and
say it is much too partisan, much too ugly, and we need to take
the politics out of it, and while there are some interesting
scholarly suggestions, I haven't seen one yet that would
succeed in taking the politics out of redistricting.
But I believe from what we have heard this morning in your
opening statements and the brief Q and I we have had, it sounds
like we are all pretty much on the same page here. I do want to
emphasize that in my conversation with Chairman Sensenbrenner,
I have told him, out of courtesy and out of necessity, that
certainly the House will do what the House chooses to do and
that is their decision.
I do hope that regardless of what the ultimate decision in
the House is that that does not stop us from getting as good a
possible product as we can, because simply doing nothing, I
believe, is not an option. We will just have to work out those
differences the best we can, respecting differing opinions, but
also the fact that you have to live with the reality of the
approach of people who disagree perhaps with the best approach
to this issue.
Before we close, I would like to provide each one of you an
opportunity to provide any concluding remarks that you might
have, things that we have not discussed that should be
discussed. Of course, the written testimony that you have
provided will be made part of the record, without objection,
and we will leave the record open for a period of time, Monday
next at five p.m.. We will leave it open until then, so anyone
who wishes to provide additional written materials may do so
and those will be made a part of the record of this hearing.
Senator Simpson, I would be glad to hear you and Professor
Levinson and Professor Wasserman on any concluding remarks you
may have. Please proceed.
Mr. Simpson. A very dangerous thing, Senator, and I am
going to limit it to one minute. I want to work with the House.
We have had House members testify before our group. We have not
had Chairman Sensenbrenner testify, nor present anything other
than his own bill. I would hope that we could get together and
talk. I think we need that.
I am not being compensated for this wonderful activity, and
we have the AEI and the Brookings Institute sponsoring this
commission. So if you don't like the right, you can accuse
them, and if you don't like the left, you can accuse them. So
we are working together. Our senior counselors are Norm
Ornstein and Thomas Mann, so we get the best in those two fine
people, and a fine executive director, John Fortier.
We are not interested in controversy. We are interested in
reality. Everything now is reality television. The actuality is
it happened, it happened. It is not some bubbled-headed dream
that happened as we watched, and it can happen again. I think
it is just like writing a will. You don't like writing a will
because you think you are going to die after you sign it. So we
are writing a will for America here and we won't die after we
sign it.
The other thing that is so fascinating is if the goal of
terrorism is to destroy our Government and we put something
together like we have in mind, they will say you can't destroy
those damn fools; they can reconstruct, they can come back
quickly. I think people are forgetting that.
Senator Cornyn. Thank you.
Professor Levinson.
Mr. Levinson. I would like just to reiterate one point:
Should this kind of catastrophe happen and Congress isn't able
to function, the practical reality is not that nothing would
happen, but that the President, for good reason in this kind of
situation, would, in effect, seize power because the one thing
we know under this sort of condition is that decisions would
have to be made.
Anybody who believes, as I certainly do, that, to put it
mildly, Congress plays an essential role in our constitutional
system ought not tolerate the possibility of presidential
dictatorship, even a benevolent one. I think that is one of the
things that makes this amendment just so crucial.
Senator Cornyn. Professor Wasserman.
Mr. Wasserman. Whatever the general opposition or
apprehension or hesitancy to enact constitutional amendments
may be, I think the central purpose of Article V was to allow
for amendments that dealt specifically with the structure of
the Federal Government, and in particular the processes and
procedures by which the Government selects the members who are
going to serve in those offices. Those are the types of things
that the Framers recognized. They didn't anticipate changes,
and each generation would make procedural changes accordingly.
This is precisely that type of procedural amendment that is
absolutely anticipated by the Framers and which becomes a
necessity in order to allow the Government to continue
functioning as it is supposed to under the Constitution.
Senator Cornyn. Well, thanks to each of you for being here
today and for arranging your schedules so that we could have
this hearing. I think this has been very important, and while
we seem to be at least here singing off the same sheet of
music, we know that there will be a debate and that debate is
important. But just as important as the debate, we need
resolution and we need action. I especially want to thank you
for coming here during such inclement weather. I am glad you
weren't deterred.
Before we adjourn, I would also like to again express my
thanks to the Chairman, Senator Hatch, and the ranking member,
Senator Leahy, for their cooperation in this hearing. We will
leave the record open, as I said, until five p.m. on Monday
next, February 2, for members to submit documents into the
record or to ask written questions of any of the witnesses.
With that, this hearing of the Senate Committee on the
Judiciary is adjourned.
[Whereupon, at 10:41 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC] [TIFF OMITTED] T4082.001
[GRAPHIC] [TIFF OMITTED] T4082.002
[GRAPHIC] [TIFF OMITTED] T4082.003
[GRAPHIC] [TIFF OMITTED] T4082.004
[GRAPHIC] [TIFF OMITTED] T4082.005
[GRAPHIC] [TIFF OMITTED] T4082.006
[GRAPHIC] [TIFF OMITTED] T4082.007
[GRAPHIC] [TIFF OMITTED] T4082.008
[GRAPHIC] [TIFF OMITTED] T4082.009
[GRAPHIC] [TIFF OMITTED] T4082.010
[GRAPHIC] [TIFF OMITTED] T4082.011
[GRAPHIC] [TIFF OMITTED] T4082.012
[GRAPHIC] [TIFF OMITTED] T4082.013
[GRAPHIC] [TIFF OMITTED] T4082.065
[GRAPHIC] [TIFF OMITTED] T4082.066
[GRAPHIC] [TIFF OMITTED] T4082.016
[GRAPHIC] [TIFF OMITTED] T4082.017
[GRAPHIC] [TIFF OMITTED] T4082.018
[GRAPHIC] [TIFF OMITTED] T4082.019
[GRAPHIC] [TIFF OMITTED] T4082.020
[GRAPHIC] [TIFF OMITTED] T4082.021
[GRAPHIC] [TIFF OMITTED] T4082.022
[GRAPHIC] [TIFF OMITTED] T4082.023
[GRAPHIC] [TIFF OMITTED] T4082.024
[GRAPHIC] [TIFF OMITTED] T4082.025
[GRAPHIC] [TIFF OMITTED] T4082.026
[GRAPHIC] [TIFF OMITTED] T4082.027
[GRAPHIC] [TIFF OMITTED] T4082.028
[GRAPHIC] [TIFF OMITTED] T4082.029
[GRAPHIC] [TIFF OMITTED] T4082.030
[GRAPHIC] [TIFF OMITTED] T4082.031
[GRAPHIC] [TIFF OMITTED] T4082.032
[GRAPHIC] [TIFF OMITTED] T4082.033
[GRAPHIC] [TIFF OMITTED] T4082.034
[GRAPHIC] [TIFF OMITTED] T4082.035
[GRAPHIC] [TIFF OMITTED] T4082.036
[GRAPHIC] [TIFF OMITTED] T4082.037
[GRAPHIC] [TIFF OMITTED] T4082.038
[GRAPHIC] [TIFF OMITTED] T4082.039
[GRAPHIC] [TIFF OMITTED] T4082.040
[GRAPHIC] [TIFF OMITTED] T4082.041
[GRAPHIC] [TIFF OMITTED] T4082.042
[GRAPHIC] [TIFF OMITTED] T4082.043
[GRAPHIC] [TIFF OMITTED] T4082.044
[GRAPHIC] [TIFF OMITTED] T4082.045
[GRAPHIC] [TIFF OMITTED] T4082.046
[GRAPHIC] [TIFF OMITTED] T4082.047
[GRAPHIC] [TIFF OMITTED] T4082.048
[GRAPHIC] [TIFF OMITTED] T4082.049
[GRAPHIC] [TIFF OMITTED] T4082.050
[GRAPHIC] [TIFF OMITTED] T4082.051
[GRAPHIC] [TIFF OMITTED] T4082.052
[GRAPHIC] [TIFF OMITTED] T4082.053
[GRAPHIC] [TIFF OMITTED] T4082.054
[GRAPHIC] [TIFF OMITTED] T4082.055
[GRAPHIC] [TIFF OMITTED] T4082.056
[GRAPHIC] [TIFF OMITTED] T4082.057
[GRAPHIC] [TIFF OMITTED] T4082.058
[GRAPHIC] [TIFF OMITTED] T4082.059
[GRAPHIC] [TIFF OMITTED] T4082.060
[GRAPHIC] [TIFF OMITTED] T4082.061
[GRAPHIC] [TIFF OMITTED] T4082.062
[GRAPHIC] [TIFF OMITTED] T4082.063
[GRAPHIC] [TIFF OMITTED] T4082.064