[Senate Hearing 109-397]
[From the U.S. Government Publishing Office]
S. Hrg. 109-397, PT. 1
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
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MARCH 3, SEPTEMBER 29, AND OCTOBER 6, 2005
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PART 1
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Serial No. J-109-4
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 109-397, PT. 1
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 3, SEPTEMBER 29, AND OCTOBER 6, 2005
__________
PART 1
__________
Serial No. J-109-4
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
27-745 WASHINGTON : 2006
_____________________________________________________________________________
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
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa 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
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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THURSDAY, MARCH 3, 2005
STATEMENTS OF COMMITTEE MEMBERS
Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 6
prepared statement........................................... 267
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 281
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 5
PRESENTERS
Dole, Hon. Elizabeth, a U.S. Senator from the State of North
Carolina presenting Terrence W. Boyle, Nominee to be Circuit
Judge for the Fourth Circuit, Robert J. Conrad, Jr., Nominee to
be District Judge for the Western District of North Carolina,
and James C. Dever, III, Nominee to be District Judge for the
Eastern District of North Carolina............................. 1
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina presenting Terrence W. Boyle, Nominee to be Circuit
Judge for the Fourth Circuit, Robert J. Conrad, Jr., Nominee to
be District Judge for the Western District of North Carolina,
and James C. Dever, III, Nominee to be District Judge for the
Eastern District of North Carolina............................. 3
STATEMENTS OF THE NOMINEES
Boyle, Terrence W., Nominee to be Circuit Judge for the Fourth
Circuit........................................................ 8
Questionnaire................................................ 9
Conrad, Robert J., Jr., Nominee to be District Judge for the
Western District of North Carolina............................. 72
Questionnaire................................................ 74
Dever, James C., III, Nominee to be District Judge for the
Eastern District of North Carolina............................. 99
Questionnaire................................................ 100
QUESTIONS AND ANSWERS
Responses of Terrence W. Boyle to questions submitted by Senator
Durbin......................................................... 145
Responses of Terrence W. Boyle to questions submitted by Senator
Feingold....................................................... 156
Responses of Terrence W. Boyle to questions submitted by Senator
Feinstein...................................................... 168
Responses of Terrence W. Boyle to questions submitted by Senator
Kennedy........................................................ 173
Responses of Terrence W. Boyle to questions submitted by Senator
Leahy.......................................................... 185
Responses of Robert J. Conrade, Jr. to questions submitted by
Senators Leahy, Feinstein, and Feingold........................ 205
Responses of James D. Dever, III to questions submitted by
Senator Leahy.................................................. 212
SUBMISSIONS FOR THE RECORD
Adams, Gale M., Assistant Federal Public Defender, Fayetteville,
North Carolina, letter......................................... 213
Alabama Police Benevolent Association, Inc., Donald R. Scott,
President, Montgomery, Alabama, letter and attachment.......... 217
Boyce, R. Daniel, Attorney at Law, Raleigh, North Carolina,
letter......................................................... 219
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina, prepared statement................................... 221
California Foundation for Independent Living Centers, Mary Ann
Jones, Chair, letter........................................... 224
Calloway, Mark T., former U.S. Attorney, Charlotte, North
Carolina, letter............................................... 226
Clark, Reuben G., III, Attorney at Law, Maupin Taylor & Ellis,
P.A., Raleigh, North Carolina:
October 16, 2002, letter..................................... 227
May 20, 2003, letter......................................... 229
Coalition for a Fair and Independent Judiciary, Robert Bernstein,
Executive Director, Bazelon Center for Mental Health Law,
Andrew Imparato, President and CEO, American Association of
People with Disabilities, joint letter......................... 231
Congressional Black Caucus, Melvin L. Watt, Chair, CBC, Eleanor
Holmes Norton, Chair, CBC Judicial Nominations Taskforce,
Washington, D.C., letter....................................... 235
Cooney, James P., III, Attorney at Law, Womble Carlyle Sandridge
& Rice, Charlotte, North Carolina, letter...................... 237
Cooper, Roy, Attorney General, State of North Carolina, Raleigh,
North Carolina, letter......................................... 239
Corpening, Felice McConnell, Assistant United States Attorney,
Eastern District of North Carolina, Raleigh, North Carolina,
letter......................................................... 240
Craige, Burton, Attorney at Law, Patterson Harkavy, LLP, Raleigh,
North Carolina, letter......................................... 241
Craven, James, B., III, Attorney at Law, Durham, North Carolina,
letter......................................................... 242
Dole, Hon. Elizabeth, and Hon. Richard Burr, U.S. Senators from
the State of North Carolina, joint statement................... 243
Everett, Robinson O., Professor of Law, Duke University School of
Law, Durham, North Carolina:
June 25, 2002, letter and attachment......................... 244
April 21, 2003, letter....................................... 247
Fails, Madine H., President/CEO, Urban League of Central
Carolinas, Inc., letter........................................ 249
Free Congress Foundation, Center for Legal Policy, Judicial
Selection Monitoring Project, Washington, D.C., letter......... 250
Gilchrist, Peter S., III, District Attorney, State of North
Carolina, letter............................................... 254
Graves, Debra Carroll, Attorney at Law, Raleigh, North Carolina,
letter......................................................... 255
Harden, Holmes P., Attorney at Law, Raleigh, North Carolina,
letter......................................................... 256
Human Rights Campaign, David M. Smith, Vice President, Policy &
Strategy, Christopher R. Labonte, Legislative Director,
Washington, D.C., letter....................................... 258
Indiana Association of Urban League Executives, Dr. A.V. Fleming,
President, Chief Executive Officer, Fort Wayne, Indiana, letter 261
Judge David L. Bazelon Center for Mental Health Law, Washington,
D.C., letter................................................... 262
Laughrum, George V., II, Attorney at Law, Goodman, Carr,
Laughrum, Levine & Murray, P.A., Charlotte, North Carolina,
letter......................................................... 270
Leadership Conference on Civil Rights, Wade Henderson, Executive
Director, and Nancy Zirkin, Deputy Director, Washington, D.C.,
letter and attachment.......................................... 272
Lewis, E. Hardy, Attorney at Law, Blanchard, Jenkins, Miller &
Lewis, P.A., Raleigh, North Carolina, letter................... 285
NARAL Pro-Choice America, Nancy Keenan, President, Washington,
D.C., letter................................................... 287
National Association for the Advancement of Colored People,
Hilary O. Shelton, Director, Washington, D.C., letter.......... 289
National Association of Police Organizations, Inc., William J.
Johnson, Esq., Executive Director and General Counsel,
Washington, D.C., letter....................................... 292
National Bar Association, Kim Keenan, President, Washington,
D.C., letter................................................... 294
National Employment Lawyers Association, Janet E. Hill,
President, San Francisco, California, letter................... 301
National Organization for Women, Kim Gandy, President,
Washington, D.C., letter....................................... 304
National Urban League, Marc H. Morial, President and Chief
Executive Officer, Washington, D.C., letter and attachment..... 306
National Women's Law Center, Nancy Duff Campbell, Co-President,
and Marcia D. Greenberger, Co-President, Washington, D.C.,
letter......................................................... 308
North Carolina National Association for the Advancement of
Colored People, Melvin Alaton, President, Greensboro, North
Carolina, letter............................................... 310
North Carolina Police Benevolent Association, Inc., John C.
Midgette, Executive Director, Raleigh, North Carolina, letters. 312
North Carolina Troopers Association, Terry Story, President,
Asheboro, North Carolina, letter............................... 319
Parents, Families and Friends of Lesbians and Gays (PFLAG), Ron
Schlittler, Interim Executive Director, Washington, D.C.,
letter......................................................... 320
Powell, Judith A., Attorney at Law, Atlanta, Georgia, letter..... 321
Professional Fire Fighters and Paramedics of North Carolina,
Bobby C. Riddle, Jr., President, Wilmington, North Carolina,
letter......................................................... 322
Saltzburg, Stephen A., Howrey Professor of Trial Advocacy,
Litigation and Professional Responsibility, George Washington
University Law School, Washington, D.C., letter................ 323
Schwarz, David A., Attorney at Law, Irell & Manella LLP, Los
Angeles, California, letter.................................... 324
Stern, Herbert J., Counselor at Law, Stern Greenberg & Kilcullen,
Roseland, New Jersey, letter................................... 325
Triangle Urban League, Keith A. Sutton, President, Chief
Executive Officer, Raleigh, North Carolina, letter............. 326
United Spinal Association, Jeremy Chwat, Director of Legislation,
Washington, D.C., letter....................................... 327
Virginia Police Benevolent Association, Inc., David Graham,
President, McDonough, Georgia, letter.......................... 328
Webb, William A., former Assistant United States Attorney and
Federal Public Defender, Raleigh, North Carolina, letter....... 329
Whichard, Willis P., Dean and Professor of Law, Campbell
University, Norman Adrian Wiggins School of Law, Buies Creek,
North Carolina, letter......................................... 330
Wilson, J. Bradley, Senior Vice President and General Counsel,
Blue Cross Blue Shield of North Carolina, Durham, North
Carolina, letter............................................... 331
Yurko, Lyle J., Attorney at Law, Yurko & Owens, P.A., Charlotte,
North Carolina, letter......................................... 332
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THURSDAY, SEPTEMBER 29, 2005
STATEMENT OF COMMITTEE MEMBER
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 333
PRESENTERS
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee
presenting Harry Sandlin Mattice, Jr., Nominee to be District
Judge for the Eastern District of Tennessee.................... 336
Ensign, Hon. John, a U.S. Senator from the State of Nevada
presenting Brian Edward Sandoval, Nominee to be District Judge
for the District of Nevada..................................... 337
Frist, Hon. Bill, a U.S. Senator from the State of Tennessee
presenting Harry Sandlin Mattice, Jr., Nominee to be District
Judge for the Eastern District of Tennessee.................... 333
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting John Richard Smoak, Nominee to be District Judge for
the Northern District of Florida............................... 340
Reid, Hon. Harry, a U.S. Senator from the State of Nevada
presenting Brian Edward Sandoval, Nominee to be District Judge
for the District of Nevada..................................... 335
STATEMENTS OF THE NOMINEES
Mattice, Harry Sandlin, Jr., Nominee to be District Judge for the
Eastern District of Tennessee.................................. 438
Questionnaire................................................ 440
Sandoval, Brian Edward, Nominee to be District Judge for the
District of Nevada............................................. 388
Questionnaire................................................ 389
Smoak, John Richard, Nominee to be District Judge for the
Northern District of Florida................................... 341
Questionnaire................................................ 342
Sweeney, Margaret Mary, Nominee to be a Judge for the Court of
Federal Claims................................................. 471
Questionnaire................................................ 472
Wheeler, Thomas Craig, Nominee to be a Judge for the Court of
Federal Claims................................................. 502
Questionnaire................................................ 503
SUBMISSIONS FOR THE RECORD
Allen, Hon. George, a U.S. Senator from the State of Virginia,
prepared statement............................................. 552
Ensign, Hon. John, a U.S. Senator from the State of Nevada,
prepared statement............................................. 553
Gibbons, Hon. Jim, a Representative in Congress from the State of
Nevada, prepared statement..................................... 555
Martinez, Hon. Mel, a U.S. Senator from the State of Florida,
prepared statement............................................. 556
Warner, Hon. John, a U.S. Senator from the State of Virginia,
prepared statement............................................. 557
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THURSDAY, OCTOBER 6, 2005
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 561
prepared statement........................................... 875
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 566
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 737
prepared statement........................................... 885
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting Thomas O. Barnett, Nominee to be Assistant Attorney
General, Antitrust Division, Department of Justice............. 562
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah
presenting Wan Kim, Nominee to be Assistant Attorney General,
Civil Rights Division, Department of Justice................... 727
Lautenberg, Hon. Frank, a U.S. Senator from the State of New
Jersey presenting Wan Kim, Nominee to be Assistant Attorney
General, Civil Rights Division, Department of Justice.......... 564
Lungren, Hon. Dan, a Representative in Congress from the State of
California presenting Sue Ellen Wooldridge, Nominee to be
Assistant Attorney General, Environment and Natural Resources
Division, Department of Justice................................ 565
Smith, Hon. Gordon, a U.S. Senator from the State of Oregon
presenting Stevn G. Bradbury, Nominee to be Assistant Attorney
General for the Office of Legal Counsel, Department of Justice. 563
STATEMENTS OF THE NOMINEES
Barnett, Thomas O., Nominee to be Assistant Attorney General,
Antitrust Division, Department of Justice...................... 672
Questionnaire................................................ 673
Bradbury, Steven G., Nominee to be Assistant Attorney General for
the Office of Legal Counsel, Department of Justice............. 596
Questionnaire................................................ 597
Kim, Wan, Nominee to be Assistant Attorney General, Civil Rights
Division, Department of Justice................................ 566
Questionnaire................................................ 568
Wooldridge, Sue Ellen, Nominee to be Assistant Attorney General,
Environment and Natural Resources Division, Department of
Justice........................................................ 639
Questionnaire................................................ 640
QUESTIONS AND ANSWERS
Responses of Thomas O. Barnett to questions submitted by Senators
Kohl, Feinstein, and Durbin.................................... 748
Responses of Steven G. Bradbury to questions submitted by
Senators Grassley, Leahy, Kennedy, and Durbin.................. 761
Responses of Wan Kim to questions submitted by Senators Durbin,
Feingold, and Kennedy.......................................... 787
Responses of Wan Kim to additional questions submitted by
Senators Kennedy and Durbin.................................... 841
Responses of Sue Ellen Wooldridge to questions submitted by
Senator Leahy.................................................. 871
SUBMISSIONS FOR THE RECORD
Corzine, Hon. Jon S., a U.S. Senator from the State of New
Jersey, letter................................................. 881
Fraternal Order of Police, Chuck Canterbury, National President,
Washington, D.C., letter....................................... 883
Kim, Wan, to be Assistant Attorney General, Civil Rights
Division, Department of Justice, prepared statement............ 889
National Asian Pacific American Bar Association, Washington,
D.C., letter................................................... 891
National Asian Pacific American Legal Consortium, July 11, 2005,
press release.................................................. 892
Warner, Hon. John, a U.S. Senator from the State of Virginia,
prepared statement............................................. 893
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ALPHABETICAL LIST OF NOMINEES
Barnett, Thomas O., Nominee to be Assistant Attorney General,
Antitrust Division, Department of Justice...................... 672
Boyle, Terrence W., Nominee to be Circuit Judge for the Fourth
Circuit........................................................ 8
Bradbury, Steven G., Nominee to be Assistant Attorney General for
the Office of Legal Counsel, Department of Justice............. 596
Conrad, Robert J., Jr., Nominee to be District Judge for the
Western District of North Carolina............................. 72
Dever, James C., III, Nominee to be District Judge for the
Eastern District of North Carolina............................. 99
Kim, Wan, Nominee to be Assistant Attorney General, Civil Rights
Division, Department of Justice................................ 566
Mattice, Harry Sandlin, Jr., Nominee to be District Judge for the
Eastern District of Tennessee.................................. 438
Sandoval, Brian Edward, Nominee to be District Judge for the
District of Nevada............................................. 388
Smoak, John Richard, Nominee to be District Judge for the
Northern District of Florida................................... 341
Sweeney, Margaret Mary, Nominee to be a Judge for the Court of
Federal Claims................................................. 471
Wheeler, Thomas Craig, Nominee to be a Judge for the Court of
Federal Claims................................................. 502
Wooldridge, Sue Ellen, Nominee to be Assistant Attorney General,
Environment and Natural Resources Division, Department of
Justice........................................................ 639
NOMINATIONS OF TERRENCE W. BOYLE, OF NORTH CAROLINA, TO BE CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT; ROBERT J. CONRAD, JR., OF NORTH CAROLINA,
TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA; AND
JAMES C. DEVER, III, OF NORTH CAROLINA, TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF NORTH CAROLINA
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THURSDAY, MARCH 3, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:00 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Lindsey
Graham presiding.
Present: Senators Graham, Specter, Leahy, and Kennedy.
Senator Graham. The hearing will come to order. I thank
everyone for attending.
There is a vote at two o'clock, supposedly. If it is okay
with everyone, we will hear from Senator Dole and Senator Burr,
then go vote and come back and continue the hearing.
With that in mind, I will recognize the senior Senator from
North Carolina, Senator Dole.
PRESENTATION OF TERRENCE W. BOYLE, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT, ROBERT J. CONRAD, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA, AND
JAMES C. DEVER, III, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF NORTH CAROLINA, BY HON. ELIZABETH DOLE, A
U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Dole. Thank you very much. Senator, I want to thank
you for holding today's hearing which is so important to North
Carolina. Our Federal bench has been without the service of
these able judges for far too long.
It is my honor to introduce to the Committee Judge Terrence
Boyle, nominee for the Fourth Circuit Court of Appeals; Judge
Jim Dever, nominee for the Eastern District of North Carolina;
and Bob Conrad, nominee for the Western District of North
Carolina.
I am so pleased to be sitting here with Senator Richard
Burr. This is the first time that we have testified together as
Senators. I am glad it is for such a worthy cause as making
sure that we have excellent judges on the Federal bench.
Richard, I look forward to working with you on these and
future judicial nominations.
When I first joined the United States Senate a little over
2 years ago, North Carolina had not a single judge on the
Fourth Circuit Court of Appeals. Imagine, the largest State in
the circuit and not one judge.
Currently, North Carolina enjoys the services of Judge
Alison Duncan, but based on our proportion of the circuit, we
should have at least four members of the court who consider
North Carolina home. I look forward to a second North
Carolinian joining the Fourth Circuit Court of Appeals in the
near future.
Judge Terrence Boyle, of Edenton, was first nominated to
the Fourth Circuit in 1991, then again more than a decade later
in May 2001. Judge Boyle currently serves on the U.S. District
Court for the Eastern District of North Carolina, a position he
has held for 21 years. As a district court judge, he was
designated to sit with the court of appeals 12 times, and he
has authored over 20 appellate opinions. From 1997 until this
past year, he served as past judge.
Terry received his undergraduate degree from Brown
University and a law degree from American University. He began
his career working in Congress at the House Subcommittee on
Housing, Banking and Currency, and later served as an aide to
Senator Jesse Helms.
Following more than a decade of private practice, Terry
became a U.S. District Judge for the Eastern District. In his
impressive judicial career, he has received praise from
attorneys and colleagues of both political persuasions.
Wade Smith, a Raleigh lawyer and former North Carolina
Democratic Party Chairman, said about Judge Boyle, and I quote,
``I think he would happily rule against me and happily rule for
me, whether I am a Republican or Democrat. I think he makes his
decisions on the facts and that is the best we could ever
hope.'' It is my fervent hope that the Committee will act
expeditiously in sending Judge Boyle's nomination to the floor.
I would like to turn now to our district court nominees.
North Carolina has had the longest district court vacancy in
the country. For 6 years, a seat on the U.S. District Court for
the Eastern District of North Carolina has been vacant. It is
considered a judicial emergency by the Judicial Conference.
Jim Dever, a former editor-in-chief of the Duke University
Law Journal, was first nominated to fill this longstanding
vacancy 3 years ago. Jim lives in Raleigh and currently serves
as United States Magistrate Judge in the Eastern District of
North Carolina. Raleigh, the State's capital and the district's
largest city, is without a resident district court judge.
Elevating Jim to the district court will end this problem.
There hasn't been one single objection raised about Jim
Dever's qualifications. He has broad bipartisan support.
Robinson Everett, a Duke law professor and former Chief Judge
of the Court of Appeals for the Armed Forces, describes Jim
Dever as having, and again I quote, ``all the requisite
qualities. He will be a superb jurist.''
I am also proud to introduce Bob Conrad, nominated in April
2003 to be United States District Judge for the Western
District of North Carolina. Bob is sorely needed. As our courts
confront the ramifications of the Supreme Court's recent
decision on the Federal minimum sentence guidelines, it is
reasonable to expect that we will have even higher caseloads
and need more judges to deal with them.
Bob Conrad is held in high esteem by his colleagues, both
Republicans and Democrats. He is known for his prosecution of a
cigarette smuggling ring funding the terrorist group Hezbollah,
and in 1999 Bob Conrad was appointed by then-Attorney General
Janet Reno to head the U.S. Justice Department's investigation
into campaign fundraising abuses.
Bob is a graduate of Clemson and the University of Virginia
Law School. While at Clemson, he was an academic All-American
on the basketball team, and I think it looks like Clemson could
use Bob in the ACC Tournament next week. Bob served as a
Federal prosecutor in Charlotte starting in 1989. From 2001
until 2004, he was the U.S. Attorney for the Western District
of North Carolina. Currently, he is in private practice at one
of the largest law firms in the world as a partner in its
Charlotte office.
All three North Carolina nominees come with impeccable
credentials and it is my privilege to give them my strong
support. Again, thank you for holding this hearing.
Senator Graham. Thank you, Senator Dole.
[The prepared statement of Senator Dole appears as a
submission for the record.]
Senator Burr.
PRESENTATION OF TERRENCE W. BOYLE, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT, ROBERT J. CONRAD, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA, AND
JAMES C. DEVER, III, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF NORTH CAROLINA, BY HON. RICHARD BURR, A
U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Burr. Mr. Chairman, I thank you, and I am here with
tremendous pride to have the opportunity, along with Senator
Dole, to introduce three distinguished North Carolinians
nominated to judgeships by President Bush. Today is indeed a
great day for North Carolina.
The gentlemen in question--Judge Terrence Boyle, Magistrate
Judge James Dever and former U.S. Attorney Robert Conrad--have
all served their State and their Nation admirably.
Mr. Chairman, I will also talk about the qualifications of
these individuals and will be repetitive of what Senator Dole
has said, and I say that for a reason, because these gentlemen
should be judged based upon the record that they have. I
believe that the record speaks for itself that they are more
than qualified to be nominated and every bit qualified to be
confirmed by the United States Senate.
There are 15 circuit court judgeships in the Fourth Circuit
and only one of these is occupied by a North Carolina judge.
Our neighbor States to the north and to the south within the
circuit both have four circuit judges. North Carolina is
chronically underrepresented and not represented at all at the
circuit court level.
A great deal of this can, of course, be attributed to the
political nature of the debate surrounding nominations to the
Fourth Circuit Court. That time has passed. The people of
eastern North Carolina, and indeed all North Carolinians
deserve another voice on the Fourth Circuit.
Judge Boyle, currently serving as District Court Judge for
the Eastern District of North Carolina, has been nominated by
the President to serve on the Fourth Circuit Court of Appeals.
The American Bar Association has unanimously rated Judge Boyle
as well qualified, and has stated he would make an outstanding
appellate judge.
He has served as a district court judge for 21 years and
has served in the position longer than 93 percent of the seated
active Federal district court judges. He has presented over
more than 12,000 cases, covering every possible kind of Federal
criminal and civil trial. From time to time, he has been
assigned to hear cases in the Western District of North
Carolina and the Eastern District of Virginia, hearing criminal
cases in both.
He also has experience at the appellate level, serving as a
visiting judge on occasion from 1985 to the year 2000. During
that time, he participated in oral arguments of more than 200
cases and wrote opinions in more than 50 cases in the court. I
urge the Committee to move the nomination of Judge Boyle
forward.
The Committee also has before it two nominees to North
Carolina district courts. Even a Wake Forest grad like me is
pleased to endorse them, despite the time that they spent at
ACC rivals Duke and Clemson, and the University of Virginia.
But I look past their academic choices even with March Madness
upon us here in Washington, since they have accounted for
themselves so well since leaving school.
Duke Law graduate Jim Dever, nominated by the President to
the Eastern District, is currently serving the district as a
magistrate judge. The seat to which he has been nominated has
been vacant since December 7, 1997, more than 7 years. The
Administration Office of U.S. Courts has classified the vacancy
as a judicial emergency since the year 1999.
The Eastern District of North Carolina includes 44 of the
State's 100 counties and extends from Wake County, which is
Raleigh, to the coast of North Carolina. The civil and criminal
caseloads in the district continue to increase and will
continue to expand as a result of numerous initiatives launched
by the U.S. Attorney.
Clemson and UVA Law grad Bob Conrad, nominated by the
President to the Western District, is currently in private
practice in Charlotte. He served as U.S. Attorney for the
district from 2001 until late last year, and served as an
Assistant U.S. Attorney for the district for 11 years, from
1989 to the year 2000. The Western District faces its own
challenges, where there are currently two judicial vacancies,
including one created by the untimely passing of Judge
McKnight.
This time of the year is doubly important to Bob, who
played on the Clemson basketball team that advanced to the
Elite 8 of the NCAA Tournament in 1980. And I am sure they will
not repeat this year, Mr. Chairman. I remind the Committee that
he did this while earning an academic all-ACC selection.
This is indeed an all-ACC academic selection in the three
individuals that we have here. This Committee and the United
States Senate has before them the three most qualified
individuals that I believe North Carolina can produce and I am
proud to be here with Senator Dole to ask you for your support
to move their nominations forward.
Thank you, Mr. Chairman.
Senator Graham. Thank you, and on behalf of Clemson
basketball, hope springs eternal. I thank both Senators very
much for your testimony before the Committee. Thank you both
for coming.
We have a vote on. I think the best thing for us to do is
to adjourn to go vote. I think we have one vote, maybe two. We
will try to come back to reconvene the hearing at 2:30, and I
would like to welcome all the family and friends of the
nominees here today and the nominees themselves.
We will stand in recess until 2:30.
[The Committee stood in recess from 2:13 p.m. to 2:49 p.m.]
Chairman Specter. The Judiciary Committee will resume. I
thank Senator Lindsey Graham for conducting the hearing up to
this point. This is a busy day in the Senate. We are
undertaking consideration of a bankruptcy bill and we just
finished two back-to-back roll call votes which occupy the
Senators.
I just said I thank you, Senator Graham, and I would like
to make some comments and then turn the gavel back over to you
shortly.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Chairman Specter. We have before us the confirmation
proceeding for Judge Terrence Boyle, nominated for the Fourth
Circuit Court of Appeals.
Welcome, Judge Boyle.
Judge Boyle. Thank you, sir.
Chairman Specter. Judge Boyle was nominated by President
Bush for this position by both 41 and 43--so that is up to 84;
maybe that is a lucky number, Judge Boyle--by the first
President Bush in 1991, and not given a hearing by the
Judiciary Committee at that time. That is part of what I have
characterized as the escalation of the controversy over judges
where I have said that I think both parties bear some of the
blame.
On May 9th of 2001, shortly after being inaugurated, the
current President Bush sent his first judicial nominations to
the Senate. There were 11 judges nominated at that time and
Judge Boyle is the last one of those 11 to be given a hearing
at the present time. He did not receive a hearing because a
home State Senator did not return a blue slip.
Judge Boyle is currently a Federal judge in the Eastern
District of North Carolina, nominated to that seat by President
Reagan in 1984, and confirmed by unanimous consent. He has
twice been appointed by Chief Justice Rehnquist to be serve on
committees of the Judicial Conference, which is a high
distinction. He worked with the Federal public defender's
office in his district. He has gained broad Federal appellate
court experience during 12 terms when he was designated to sit
with the Fourth Circuit.
He began his career in Congress, where he was Minority
Counsel to the House Subcommittee on Housing, Banking and
Currency. Prior to becoming a Federal district judge, Judge
Boyle practiced law in North Carolina, gaining experience on
both the civil and criminal sides.
He has been the recipient of numerous accolades by those
who have observed his work. The Raleigh News and Observer, the
hometown newspaper, said this, quote, ``Judge Terrence Boyle
has a reputation as a Jesse Helms Republican, but to those who
know the independent-minded jurist, his ruling Thursday against
the Navy and in favor of environmentalists isn't such a
shocker. Judge Boyle, the top Federal judge in eastern North
Carolina, sided with environmentalists in several cases. For
example, he ruled that a large wetland draining was illegal and
that farmers couldn't stop the re-introduction of red wolves in
eastern North Carolina; the State could not widen part of
Interstate 26 in the mountains before studying the ecological
impact. His ruling, like the veteran judge himself, is hard to
pigeon-hole.''
``In 20 years as a judge, he has won considerable support
form eastern North Carolina lawyers, who say he is fair to both
sides and plays it straight, often with tough questioning on
both sides before him.'' That is from the same News and
Observer article.
The Charlotte Observer had this to say, quote, ``Boyle's
detractors have long argued that such a conservative judge
should not be confirmed to the Fourth Circuit Court of Appeals.
But a lot of political moderates and liberals have come to
admire his rulings in important cases.''
Jack Betts: ``The judge steps in where politicians dare not
go.'' That is from the North Carolina Observer of April 25,
2004. I could go on at considerable length, but I am not going
to. I will ask unanimous consent that this be made a part of
the record.
We turn at this time to our distinguished colleague,
Senator Kennedy, for an opening statement.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, Mr. Chairman. We are glad you
are making a speedy and strong recovery.
Chairman Specter. Thank you.
Senator Kennedy. As with all nominations for lifetime
positions on the Federal courts, our Committee has a clear
responsibility to review Judge Boyle's record on the Federal
district court.
As you know, Mr. Boyle, your record raises a number of
serious questions. There are real questions about whether you
abused your power on the district court by wrongfully
dismissing plaintiffs' claims without giving them a fair chance
to make their case or have their day in court.
You have been reversed on appeal far more than any other
district judge in the Fourth Circuit. Too often, those
reversals have come because you made the same mistake more than
once. More troubling still is the fact that you seem to have
been reversed most often and made the most serious legal errors
in the cases that matter most to average citizens.
Again and again, the Fourth Circuit has ruled that you
improperly dismissed cases on important individual rights, such
as the right to free speech, free association and the right to
be free from discrimination. You have repeatedly tried to
strike down important parts of the Americans With Disabilities
Act. You mis-applied or misinterpreted other landmark civil
rights laws, including the Voting Rights Act and Title VII of
the Civil Rights Act of 1964. In numerous cases, the Fourth
Circuit has ruled that you abused your discretion and refused
to follow the law.
In the Voting Rights Act case of Cromartie v. Hunt, the
Supreme Court ruled unanimously in an opinion by Justice Thomas
that you failed to follow the basic legal standard on summary
judgment motions, and that you were wrong to decide, without
even having a trial, that a Congressional district with a
significant African-American population necessarily resulted
from improper racial gerrymandering.
It is rare for any judge's decision to be unanimously
reversed by the Supreme Court in a civil rights case or any
other case. Yet, the Supreme Court later reversed you for a
second time in the same case for failing to follow the law.
These are very important concerns and you will have an
opportunity to respond. We must make absolutely certain that
persons selected for lifetime appointments to the Federal
courts will not abuse their power by failing to follow the law.
We need judges who come to the Federal bench with an open mind
and a commitment to fairness for all Americans, not judges who
believe that they are above the law. Your record raises real
questions about these basic issues.
The vast majority of your decisions are unpublished and
have not been provided to the Committee. There is no way to
tell whether the problems found so far are just the tip of a
very large iceberg. The American people have a right to know
how you have treated parties who appear in your court and how
you have ruled in those unpublished opinions before we act on
your nomination to a lifetime position on the appellate court.
Because of the obvious questions already raised, the
Committee has a special responsibility, I believe, to review
the entire record in assessing qualifications and judicial
philosophy. I hope we will have the opportunity to review all
the opinions and I look forward to the hearing and your
responses to these serious concerns.
I thank the Chair.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Kennedy.
Judge Boyle, will you stand for the administration of the
oath?
Do you solemnly swear that the evidence and testimony that
you will give before this proceeding of the Senate Judiciary
Committee will be the truth, the whole truth and nothing but
the truth, so help you God?
Judge Boyle. I will.
Chairman Specter. Judge Boyle, are there any members of
your family present this afternoon? If so, we would like to
meet them.
STATEMENT OF TERRENCE W. BOYLE, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT
Judge Boyle. Yes, Senator. My wife, Debbie, is here and she
has accompanied me, my wife of 33 years, and I am proud and
pleased to have her by my side.
Chairman Specter. Thank you very much, Judge Boyle. Would
you care to make an opening statement?
Judge Boyle. I just want to briefly thank the President for
extending this nomination to me, and thank you, Senator Specter
and all the members of the Committee, for affording me an
opportunity to have a hearing on the nomination. And I am ready
to cooperate with the Committee and be as forthcoming and
helpful as I can be in trying to understand the issues that are
important that are a part of this proceeding.
[The biographical information of Judge Boyle follows.]
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Chairman Specter. Thank you, Judge Boyle.
The Committee will proceed with seven-minute rounds. I see
we have just changed to five-minute rounds. Let's go back to
seven-minute rounds.
Judge Boyle, let's proceed right to the core concerns which
have been raised about your record that you were anti-civil
rights. What are your views on the rights of Americans under
the United States Constitution, the Voting Rights Act and civil
rights?
Judge Boyle. Thank you for that question, Senator. I think
that is a critical matter for this hearing. I can say
categorically that I am committed, and committed to enforcing
the law that provides civil liberties, civil rights, the rights
of employees.
And I regret that I am having to defend what I think a more
complete examination will show is a record of sensitivity to
plaintiffs and to the underprivileged and to those who don't
have a voice otherwise.
Chairman Specter. Can you be more specific in support of
the statement you just made?
Judge Boyle. More specific?
Chairman Specter. Well, with respect to cases, with respect
to specific decisions beyond the generalization.
Judge Boyle. Well, you mean cases other than those that
have been raised in criticism or the ones specifically that
have been raised in--
Chairman Specter. Yes, give us a broader view.
Judge Boyle. Well, I have had voting rights cases other
than the Cromartie case in which I have certainly enforced and
been sensitive to Section 2 and the rights of minority voters.
I have presided over cases involving the enforcement of school
desegregation cases and have enforced that across the board. I
have had cases involving the widespread application of the
Americans With Disabilities Act to residential housing.
So I think that a careful look at my record will show that
I am even-handed, that the cases I have decided have been
decided on the facts as I understood them at the time and not
based on any agenda. There certainly is no agenda or philosophy
on my part that is disrespectful from individual rights, civil
rights and the rights of employees.
Chairman Specter. In reviewing your record, one of the
cases which caught my attention particularly was EEOC v.
Federal Employees, where you ruled against a claim by the
defendant on a sexual harassment allegation by male employees
against a female employee.
You found that, quote, ``The sustained level of abuse
alleged would certainly constitute an alteration in the
condition of employment, creating an environment of fear and
humiliation. The alleged misconduct often took place in a
predatory manner with a male employee cornering her in a
secluded part of the ramp area. No doubt, such behavior would
substantially interfere with the work performance of any
reasonable person.''
I have just given a thumbnail description. Can you amplify
on what happened in that case?
Judge Boyle. Senator, I am very sorry. I don't have a
personal recollection of the case, EEOC v.--I apologize. It is
not one that readily comes to mind.
Chairman Specter. That is understandable. How many cases
have you decided?
Judge Boyle. There have been a lot over time, and we have a
busy court and we try to be efficient and conscientious about
that.
Chairman Specter. If somebody asked me what I said in a
speech at some protracted period of time, I would have a hard
time myself, maybe like yesterday, as to what was said.
You worked with the Federal public defender's office in
your district in order to expand the local bar's participation
in providing legal services to indigent criminal defendants.
The first experience I had at the law was I joined a big firm
and the county jail was overloaded and they assigned a couple
of recent law school graduates to represent indigent
defendants. That got me interested in criminal law and one
thing led to another.
Tell us about your participation on the staff of the
Federal public defender.
Judge Boyle. Well, I think that my participation has been a
judge, a district judge, and then as the chief judge for some
period of time. I have tried to work closely with them,
supporting the inclusion of not just the Federal public
defender, but lawyers in private practice who take appointment
of indigent cases. I have tried to work with them in their
training and generally outreach to make sure that we have full,
ready and adequate representation of defendants.
I have also worked extensively with North Carolina prisoner
legal services to make sure that prisoners who appear in cases
in our court are properly represented and there is an
opportunity for them to have representation when they have
important claims. I think this is very important.
Chairman Specter. Do you recollect a case where you granted
a permanent injunction prohibiting the Navy's construction of a
landing field which would have adversely impacted a nearby
wildlife refuge, which was a matter before your court having a
very substantial environmental impact?
Judge Boyle. That is a very recent case, yes, sir.
Chairman Specter. What was involved in that case?
Judge Boyle. Well, it is a case brought by various parties
under the National Environmental Policy Act against the Navy,
but I would be glad to discuss it. I am a little concerned
because the case is still alive in court. There is a permanent
injunction, but I wouldn't want to create the impression that
what I said here might influence the later proceedings in the
case.
Would you indulge me not to--
Chairman Specter. Judge Boyle, that is a very judicious
statement.
Judge Boyle. --not to talk about that?
Chairman Specter. No, no. I think you have just established
some of your mettle, some of your qualifications by declining
to answer a question from the Chairman of the Judiciary
Committee. I think you are on solid ground and I admire that.
I am going to yield at this time to my distinguished
colleague, Senator Lindsey Graham, to preside over the
hearings.
Judge Boyle. Thank you very much for being here, Senator.
Senator Graham. [presiding]. Senator Kennedy, are you
ready?
Senator Kennedy. Thank you.
Judge Boyle, in your response to the Chairman about the
actions of your own as a judge on the court or other activities
that show the sensitivity to these issues, if you want to
submit letters, cases or other kinds of activities that show
that that you think would be useful or helpful to us, we would
welcome it. You can either comment now or you can file them. I
am glad to have it either way, whatever way.
Judge Boyle. Thank you for that offer, Senator.
Senator Kennedy. But I think you should be able to do it,
and we will certainly make that part of the record and we would
be interested in your response to that.
Judge Boyle. Thank you very much.
Senator Kennedy. I am concerned primarily on these issues
on the 1991 Act which I was a principal sponsor of that
overturned the Ward's Cove decision. Actually, our Chairman of
the Committee, Senator Specter--it started off with Senator
Danforth and then Senator Specter was the principal cosponsor
on it.
I want to talk with you about some of these issues, some of
these decisions, and get your reactions to it. First of all,
you have, as I at least understand it, repeatedly
misinterpreted Title VII of the 1964 Civil Rights Act. That
deals with employment, as you know, the landmark law against
job discrimination.
In U.S. v. North Carolina, you refused to enter a consent
decree agreed to by the Justice Department and the State of
North Carolina settling a suit alleging a pattern or practice
of gender discrimination in hiring and promoting prison guards.
That case was originally investigated and the lawsuit was
authorized by the first President Bush.
North Carolina had agreed to establish an office to oversee
compliance with Title VII, recruit female applicants and
compensate women who had not been hired because of their sex.
The department identified over 600 women who had been harmed by
discriminatory practices. You refused to enter the decree,
urging the State to withdraw from the binding contract, and
ruled that your court had no jurisdiction over the case. Courts
across the country frequently enter into similar Justice
Department consent decrees.
On appeal, the Fourth Circuit unanimously held that your
decision was an abuse of discretion--unanimously, the Fourth
Circuit--and it ordered you to enter the consent decree. So
this is a case of an extreme example of a judge making a
decision based on his personal opinion, not the law. You
actually criticized the Department of Justice for including as
evidence of discrimination the fact that the State hired
significantly fewer female prison guards than other States,
including States in the South.
You wrote that, ``Nothing is more offensive to the idea of
federalism than the notion that the Federal Government will
punish a State for having a non-conforming culture, for being
different than other States.'' Of course, that kind of argument
was made against desegregation in the 1960's, when some said it
wasn't the South's culture to educate blacks and whites in the
same classroom. That argument was wrong then and it is wrong
now.
So doesn't it violate our most basic principles of equality
enshrined in the Constitution and Federal statutes for States
to discriminate against women for cultural reasons?
Judge Boyle. Absolutely.
Senator Kennedy. Do you want to comment about your
decision?
Judge Boyle. Well, I think that, you know, I respect your
criticism of it, and obviously it was criticized in the Fourth
Circuit. And what came to me and my reasoning--and apparently
it was ineffective reasoning--was to have a parties make a
showing to me and to provide the court with a basis for
invoking the injunctive power of the court.
During the hearings and in the discussion, it was well
understood that they could settle a case and enter into a
compliance arrangement without having a continued injunction
and subsequent court proceedings that would involve the
remediation and the remuneration of the people who were going
to make claims.
And I won't take up too much time in trying to explain it
unless you would like, but the point that I entered the case
was whether or not they were going to make a complete showing,
because later on I presided over, after the reversal and
remand, all of the remediation in the case, heard the claims of
the persons who came forward, made the distributions. So I
faithfully complied with that, and I hope that in some way
answers your question.
Senator Kennedy. Well, the only issue, as I understand it,
was whether the settlement agreement was fair. That was the
only issue that was really before you, as I understand it, and
the decision that had been made was based upon--the Justice
Department relied on various statistics in making their own
judgment. You had one judgment to decide and that was whether
it was fair, and you evidently decided that it wasn't fair.
Then your actions were overruled unanimously by the court.
Judge Boyle. They were.
Senator Kennedy. When Congress enacted the 1991 Civil
Rights Act, we expressly provided for a process in which a
plaintiff could prove discrimination by looking at the effects
of various practices. It is very difficult to prove what is in
someone's mind, but you can look at a practice and see that it
has the effect of discriminating against a certain group and
there is no legitimate business necessity for that requirement.
That change amended Title VII to include the kind of
disparate impact analysis that the Supreme Court recognized in
Griggs v. Duke Power when it held that facially neutral
employment practices cannot be allowed to act as a built-in
headwind to employment opportunities for any group.
So your opinion in the North Carolina tried to, as I
understand, impose the opposite result. You held that instead
of disparate impact analysis, the 1991 amendments overruled it.
Two years earlier, the Supreme Court had held exactly the
opposite of what you decided. In Lanzgraf v. USI Film
Productions, the Supreme Court interpreted the 1991 Act's
legislative history as expanding Title VII to allow proof of
discrimination using disparate impact analysis without proving
intent.
The Supreme Court specifically noted that Section 205 of
the 1991 Act, entitled ``Burden of Proof and Disparate
Impact,'' was passed in response to the problem of cases like
Ward's Cove to clarify the requirements in disparate impact
cases.
Do you agree today that your opinion misrepresented the
1991 amendments and that proof of discriminatory intent is not
required in a Title VII disparate impact case?
Judge Boyle. I agree with your statement, Senator, that
proof of disparate impact is not required, and I certainly
abide by the 1991 amendments and I have heard cases and applied
that law since then.
Senator Kennedy. Well, that is completely contrary to your
decision in the North Carolina case.
Judge Boyle. Well, that language wasn't the rule of
decision because the case was never decided by me. But you are
correct that you are pointing out that what I said in that case
was subject to criticism.
Senator Kennedy. Now, I see the time. I will withhold. I
have some additional questions.
Senator Graham. Well, there are three of us and I think we
need to be flexible.
Senator Leahy, would you like to make an opening statement?
Senator Leahy. Mr. Chairman, I will put my opening
statement in the record, in the interest of time.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Leahy. I would also put in the record a number of
letters of opposition, including the National Association of
Police Organizations, the North Carolina Police Benevolent
Association, the Alabama Police Benevolent Association, the
South Carolina Police Benevolent Association, the Virginia
Police Benevolent Association, the North Carolina Troopers
Association, and the Professional Fire Fighters and Paramedics
of North Carolina.
I will put those in the record, and when it is my turn to
ask questions, I do have some questions.
Senator Graham. Without objection, they will be entered
into the record.
Senator Leahy, you may proceed.
Senator Leahy. Thank you, Mr. Chairman.
Judge Boyle, it has been mentioned by some already, and you
may even have caught word that some in the press have said the
same thing, that your nomination has had some controversy,
partly because of your record on the district court. People
have highlighted your high number of reversals--actually, the
high percentage of reversals, which is probably even more
significant.
Now, by our calculations, based on the information you have
given us, 12 percent of your decisions that have been appealed
were reversed. Of course, those are the only ones you look at,
the ones that were appealed. But that is twice as often as the
average for the entire Fourth Circuit. The Fourth Circuit is a
pretty conservative circuit, the most conservative in the
country.
Now, I looked at that information and I was kind of
surprised. A couple of weeks ago, I was looking at your updated
questionnaire, and in that one you reported fewer than half of
the 142 reversals, partial reversals, or affirmances with
criticism that you reported back in 2000 and 2003. Actually,
you reported only about a third of the 150 we found. You told
the Committee the cases you left out did not include a
significant criticism of a substantive or procedural ruling.
But when I compare those, this doesn't seem to add up.
Let me give you just a few examples from the 82 cases which
I believe you shouldn't have left off your questionnaire. In
U.S. v. Barry, the Fourth Circuit, writing about your opinion,
said ``The court's departure constitutes error that was
plain.'' In U.S. v. Tanner, the appellate court criticized you
and they held ``The district court abused its discretion.''
In U.S. v. Sherrill, the appellate judges remanded the case
because you failed to make factual findings even though there
was clear precedent that you had to do that. In U.S. v. Phalan,
the defendant's sentence was vacated because the sentence
exceeded the Federal statutory maximum--a very clear error of
law.
In U.S. v. Privott, the Fourth Circuit vacated your order;
more than vacated it, they told you to comply with a Fourth
Circuit precedent--as you know, of course, the Fourth Circuit
precedent would control what you are doing--that was 5 years
old. And if that point didn't make it clear enough, they said
there was also a Supreme Court precedent 2 years old that you
had not complied with. In fact, that was one of at least two
different times you ignored that particular precedent which is
binding on you as a district judge. Now, these are just a few
of the cases as we go down the list.
Can you give me a better explanation than the one you
submitted last week about why you left out so many cases when
an appellate court decided you made a substantive or procedural
error, especially since you didn't include some of the cases
you left out the last time you were before us?
Judge Boyle. Thank you, Senator. I would like to explain
this questionnaire response. Starting in 1991, my
interpretation of the question was to provide all the cases in
which you have been other than affirmed. I did that in 1991. I
built on that in 2001. I built on that again in September of
2001 and in January of 2003.
And it was my impression that rather than that
characterization, the response was that these were all
reversals, and they weren't, in fact, all reversals. They had
some other treatments, some of them, and so I tried to answer
the question.
I knew that all of the things I had submitted heretofore
were before the Committee. There is no attempt to be evasive or
non-compliant. I can assure you of that, and what I did was
recharacterize the decisions by reversed, remanded, vacated,
and I didn't include those that appeared to be cases of not
significant comment on the law or procedure.
Now, if the Privott case--you mentioned a number of cases
and I am sorry that my memory doesn't pull every one of them
out, but I think the Privott case might be a fairly recent one.
And I know about that case and I would be glad to explain it to
you.
Senator Leahy. Before we go to that--and I would like the
explanation, but let me take one. I still can't escape the idea
that because in so many of these cases the criticism was so
strong that it leads to the conclusion by some of us that they
were left out not because of the nature of the form or
something like that, but left out because of the criticism.
I will give you a case, Cromartie, C-r-o-m-a-r-t-i-e, v.
Hunt.
Judge Boyle. Cromartie.
Senator Leahy. Cromartie.
Judge Boyle. Yes, sir.
Senator Leahy. Thank you. That was a voting rights case.
Judge Boyle. Right.
Senator Leahy. The United States Supreme Court reversed you
twice, one time by a vote of nine to zero. I am not sure that
our current Court could agree on a lunch order nine to zero, to
say nothing about a major case, and they reversed you on it.
But you leave that out and it does bother me, Judge. It really
does bother me because your number of reversals--you had
included that one, I am advised, but not as a significant
constitutional case. The Supreme Court reversed it nine to
nothing. I would consider it significant.
What I am getting at is you get reversed so much. You get
reversed by a court that should be ideologically with you. I
began my public life in law enforcement and I hear from so many
in law enforcement who are opposed to you. I try to separate my
former life from that, but I just wonder are you so out of the
mainstream that you shouldn't be on an important appellate
court.
I will stop with that because I think out of fairness to
you, you ought to be able to respond to that.
Judge Boyle. Which part of that, Senator, the out of the
mainstream or the--
Senator Leahy. Based on these reversals.
Judge Boyle. I hope that I am clearly in the mainstream,
and have done my best to apply the law and hear cases on an
individual basis, have no agenda or predisposition about cases.
I really can't give you any sort of justification about the
reversals. The reversals are there and I will just have to
address those.
I think that the comments by these PBA organizations all
arise out of a single case in which a police officer was
working part-time at night and was disciplined. And it was a
public speech case and I ruled against him, and it was reversed
and then came back, was heard and they ultimately lost. But I
don't think you will find that I have been hostile to enforcing
the law or protecting people in their rights and safety.
Thank you very much, Senator.
Senator Leahy. Thank you, Mr. Chairman. I wanted him to
have a chance to answer that. I would note that a number of
Senators planned to be here. Senator Feingold had planned to be
here, and there has been a death in his family and he has flown
back to Wisconsin because of that.
As you know, we have a major issue on the floor which is
tying up both Republicans and Democrats at great length. In
fact, I am told that we actually had to waive the Senate rules
to make it possible to have this hearing. Normally, the hearing
would not have been allowed. I mention that because I have
heard from both Republican Senators and Democratic Senators who
wanted to be here, and on a Thursday afternoon it has made it
almost impossible.
I will have further questions. If I get stuck on the floor,
because I am also one of the managers of the bill on the
floor--
Judge Boyle. Yes, sir.
Senator Leahy.--I will submit the questions if I don't come
back.
Judge Boyle. Thank you, Senator.
Senator Graham. If I may just a moment here, Judge Boyle, I
certainly come to this hearing very open-minded and I have been
given some paper that suggests that according to the
Administrative Office--and I really can't tell you who they
are, but apparently they are the folks that keep track of
reversal rates.
There is a dispute about how many cases fall into the
category of reversal that you have authored or been involved
in. This talking paper I have says that 92 out of 1,200 cases
you have decided would be consider reversals under the
Administrative Office procedures, with a 7.5-percent reversal
rate. I have also been told that the national average is 9.7.
So this is a little bit like basketball.
What I would like to do is have our staffs at an
appropriate time look at the Administrative Office standards,
compare that to what we know about Judge Boyle's record and see
if it is 7.5 or 12 percent. And I am not going to ask you to
explain this to me because I think that would be highly unfair.
United States v. North Carolina. When it was reversed and
remanded, was there an effort to have the case sent to another
judge? Do you remember?
Judge Boyle. I remember there was comment, I think--and I
haven't looked at this carefully--I think there was a comment
in the appellate opinion that said that there was no reason why
I couldn't continue to hear and abide by the law of the case.
And it continued in front of me and we had a very successful
remediation of the case, and many people came in and were
compensated and it was all handled in a very progressive way
from the rights of the employees and those prospective
employees.
But anyway, thank you.
Senator Graham. I just mention that because I believe the
court disagreed with you, as Senator Kennedy has pointed out
and you readily accept, that your interpretation had to give
way to theirs. But there was a dispute about whether or not you
are the right guy, given the circumstances, to carry this case
out, and apparently the appellate court had faith in your
ability to do that and you performed that role after the
reversal and remand. Is that correct?
Judge Boyle. That is correct, Senator.
Senator Graham. All right. Now, you have been on the Fourth
Circuit in a fill-in capacity, for lack of a better word. You
have authored 50 opinions. Is that right?
Judge Boyle. I think that is correct. I know I have sat on
more than 200 argued cases, and the typical distribution is
about a third. And I think that someone made reference to 20
opinions. That may have been published ones, but there are per
curiam opinions and ones that don't bear the panel member's
name. So I would say that is correct.
Senator Graham. Have you had reversals there?
Judge Boyle. I really don't--that would be in the Supreme
Court. I really don't recall.
Senator Graham. Okay, thank you.
I will yield to Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
I would like to have you think about Ellis v. North
Carolina, in which an African-American woman claimed that she
was fired because of her race, in violation of Title VII. In
2002, you dismissed her case because you said the Act doesn't
apply to States.
That decision was wrong. Congress amended Title VII in 1972
to cover job discrimination by States, and the Supreme Court
has held repeatedly for two decades before you issued your
opinion that States are not exempt from Title VII. When the
Fourth Circuit reviewed your opinion on appeal, it unanimously
found that you had violated Supreme Court precedents.
Judge Boyle. Senator, would you permit me to explain that?
Senator Kennedy. Sure.
Judge Boyle. Thank you very much, and I have to say that
there is no way that you could know the mistake in there
because you are reading and you are entitled to look at the
Fourth Circuit's case.
I looked at the case file and my opinion in that. The
plaintiff, represented by counsel, brought a Title VII claim
and three State tort law claims. In the Title VII claim, the
employee failed to file a claim with the administrative agency
or with the EEOC, and consequently we had no subject matter
jurisdiction.
The 11th Amendment defense only applied to the State tort
claims. And, of course, the States are exempt in Federal court
from State tort claims. And it was on that basis that I wrote
my district court opinion which was appealed to the Fourth
Circuit.
How they came up with their opinion is beyond me, with all
due respect, Senator, and I was shocked when I saw that
opinion. I immediately went to it and tried to find the facts.
The facts are categorically as I am telling you and I am sorry
that that has become an issue.
Senator Kennedy. Well, as I understand it, the question was
whether Title VII and the amendments of Title VII would have
applied to job discrimination by the States. Now, your are
saying--what was your view?
Judge Boyle. Absolutely. I mean, as soon as I saw that
opinion come back, I said, my gosh, in my sleep I know that
Title VII applies to the State. Section 5 of the 14th Amendment
was used by Congress to abrogate State sovereign immunity. I
never would have held that there was 11th Amendment immunity on
a Title VII case.
And what happened was it was a submitted case. It was not
argued. And I am sorry that, you know, we have had to have this
discussion about it, but I hope it will clear the record.
Senator Kennedy. So in your own words, in the discussion
you say, ``Next, the State and the DAHS, an agency of the
State, are entitled to sovereign immunity, pursuant to the 11th
Amendment in the United States Constitution.'' Those are your
own words.
Judge Boyle. Only with respect to the three State tort
claim claims. The first claim there was no subject matter
jurisdiction over because they had failed to make an
administrative complaint, with all due respect. I am sorry,
Senator.
Senator Kennedy. No. That is good. It is helpful.
In the Cromartie case, the reversal by the court of appeals
has raised certain concerns. I mean, it is so high. It is
almost, as I understand it, twice as high as any other district
court judge. I think the Chairman, Senator Graham, has
indicated that we are going to have a chance to review it.
You were often reversed for plain error because you
disobeyed the law or ignored the relevant legal standards. I am
troubled by your decisions in the civil rights case. My concern
is the apparent hostility to civil rights claims by minorities
and women or persons with disabilities. You have been quick to
rule in favor of whites who challenge State actions favorable
to minorities.
Your decision in Cromartie v. Hunt illustrates the problem.
White voters in North Carolina challenged a Congressional
district with a substantial African-American population
claiming it had been unconstitutionally drawn for racial
reasons. The issue was whether the white voters could prove
that the lines had been drawn for racial rather than political
reasons. You granted the summary judgment for the plaintiffs
before the parties could gather evidence in discovery and
without even holding a trial.
In the opinion, Justice Thomas ruled, nine-zero, that you
failed to follow the law and you were to quick to conclude that
the district was an illegal racial gerrymander. The Supreme
Court specifically found you ignored the proper legal standard
for summary judgment by disregarding the State's evidence which
required a trial.
Then when the case came back from the Supreme Court, you
held the trial, disregarded the evidence and simply entered the
same decision you made before. Some parts of your second
opinion are almost word-for-word the same as the earlier
decision. The Supreme Court reversed you again and said your
second opinion was clearly erroneous and ``you improperly
relied on precisely the kind of evidence we said was inadequate
the last time the case was before us.''
So looking at your two opinions, it is hard to avoid the
conclusion that you ignored the facts or ignored the law and
ignored the Supreme Court to reach the result that you might
have wanted.
Your reaction?
Judge Boyle. Thank you, Senator. And will you permit me to
explain that?
Senator Kennedy. Sure.
Judge Boyle. It is an important case and I will try to be
as expeditious as I can.
Senator Kennedy. Do you want to, Chairman, just hold so you
can have your full--we have I guess 7, 6 minutes, and I do not
want to rush you. I am going to be right back.
Judge Boyle. Okay. Do you want me to hold it until you come
back?
Senator Kennedy. Yes.
Judge Boyle. That will be great.
Senator Kennedy. Thank you very much.
Senator Graham. The Committee will be in recess for 15
minutes.
[Recess from 3:26 p.m. to 3:57 p.m.]
Senator Graham. The hearing will come back to order, and
Senator Kennedy's question I think is before Judge Boyle. If
you would like to answer it.
Judge Boyle. Yes, thank you, Senator. Are you ready? Okay,
great.
Senator Kennedy. Thank you.
Judge Boyle. I think the first thing that I'd like to point
out, and this is important, is that there were two
Congressional districts under challenge in that case. One was
the 1st and the other was the 12th. The three-judge court that
I was assigned to heard challenges to both of those, and
throughout both cases that we're talking about, Comartie I and
Comartie II, we consistently held that the African-American
district, the majority district in the 1st, was a
constitutional exercise of the State's districting power. The
challenge was to the 12th that had a more attenuated geographic
composition, and the vote was 2-1 on that.
But just in summary--and I'll be more than happy to discuss
this case at length--I think it's important to see that we
stood up for and vindicated the rights of African-Americans in
the districting decision in the 1st District, and we ruled that
the 12th District was unconstitutional. It was a three-judge
panel, and I ended up writing the majority opinion on the 12th
District.
As I say, Senator, thank you for that question.
Senator Kennedy. I will be glad to look through your answer
on this, and also the Court's statement and comments about what
their characterization was in terms of they felt was the
rationale and the reasoning.
I want to go to the ADA if we could. Judge Boyle, in the
Americans with Disabilities Act, I think a fair reading of this
would be that you repeatedly misinterpreted the ADA in favor of
the big business to limit the rights of the disabled. When
Congress passed the ADA, we specifically listed the examples of
reasonable accommodation. Reassigning an employee with a
disability to a vacant position was one of them. But in the
Williams v. Avnet, you ruled that reassigning a disabled worker
to another vacant position is never a reasonable accommodation.
So the ruling was incorrect. The ADA itself clearly,
specifically cites reassignment to a vacant position as an
example of reasonable accommodation. You held these plain words
in the law were merely suggestive and not a force of law.
Your summary judgment was upheld by the Fourth Circuit on
other grounds, but the appellate court made absolutely clear
that you were wrong when you stated the examples of reasonable
accommodation listed in the statute did not have the force of
law. The Court noted that obviously Congress considered these
types of accommodations to be reasonable. So if the Congress
gave the specific examples of the reasonable accommodation, how
could you hold that those examples are never reasonable under
the statute?
Judge Boyle. Thank you for the question. And I agree with
you that the Americans with Disabilities Act is a very
important and essential law. The Fourth Circuit, apparently
correctly overruled me in that case. That was a judgment that
was not correct. And I think I can say categorically that I
agree that the Congressional language is the governing
language.
Senator Kennedy. But you do not know why, given the Act
itself specifically cites the reassignment to a vacant
position, you do not know why you interpret those words to be
merely suggestive rather than the force of law?
Judge Boyle. I think they have the force of law, and I was
obviously correctly criticized in that case.
Senator Kennedy. I think this just raises the kind of
question in people's minds about whether your respect for the
plain language in the statutes and whether we can assume that
you will properly interpret the statutes in the future. This is
the point I am getting at.
In the Williams case you also ruled that courts should not
second guess the employer about whether an accommodation is
reasonable, and should defer to employers what is a reasonable
accommodation. You stated that if a court did not determinable
reasonableness from the employer's point of view, it would be
engaging in a subjective legislative exercise.
In reviewing your decision the Fourth Circuit criticized
this part of your opinion, explaining that it is the court's
responsibility to determine what accommodation is reasonable.
So why do you think that considering a key legal issue strictly
from the view of one party, which is the employer, is not
subjective? If that is your view of objectivity, how can we
trust that you will not simply decide cases from the viewpoint
of big business over whichever party is the more powerful?
Judge Boyle. Is that the same case, the Williams v. Avnet?
Senator Kennedy. This is the Williams case, yet.
Judge Boyle. The Avnet case, the one I just commented on.
Senator Kennedy. Yes.
Judge Boyle. Yes. I think that I'm saying to you here that
I'm committed to applying the law, and respect the inclusion
that Congress made of the specifics on that law.
Senator Kennedy. There is sort of two issues. One is the
statute for reasonable accommodation, and the other is the
interpretation you used, reasonableness from the employer's
viewpoint, and that is what I was looking at.
Judge Boyle. Yes, sir.
Senator Kennedy. I think probably your answers have
probably covered those.
You repeatedly overruled in other ways from misreading the
Americans with Disabilities Act. Moreover, you ruled that Title
II of the Act is unconstitutional. One of the most disturbing
aspects of your opinion is that you have repeatedly criticized
the landmark statute for giving what you call special
privileges to the disabled.
In Brown v. North Carolina Division of Motor Vehicles, you
wrote that Title II of the Act which prohibits discrimination
against the disabled by the States is unconstitutional because
it seeks to single out the disabled for special advantageous
treatment.
In another case, in Pierce v. King you held that Title II
was unconstitutional as it applied to State prisons, stating
that the Act granted special treatment tailored to the claimed
disability. The Supreme Court overruled your decision in that
case. Your view that accommodations have nothing to do with
equal treatment is really wrong. For a person who needs the
wheelchair ramp to get into the courtroom, or for a deaf child
who needs assistance in the classroom, failing to provide an
accommodation means inability to access justice or inability to
learn. So without taking into account the particular needs and
circumstances of persons with disabilities, there is no way to
ensure that they have the equal opportunity.
Judge Boyle. You want me to comment on the Brown case or--
Senator Kennedy. Well, on your opinion which you followed
which severely limited participation of the disability groups
in society. If we followed your interpretation of special
advantaged treatment, if that was to be criteria, we would
disadvantage many in the disadvantage movement and that is the
point I am driving at.
Judge Boyle. I recognize your point, and again, I can say
categorically that I am committed to enforcing the rights of
the disabled and the rights of the Americans with Disabilities
Act.
I know there's been criticism of the Brown case, Senator,
and that case turned an 11th Amendment interpretation. Whether
or not I agreed with it personally, it was an application that
I felt was compelled, and it ends up being the law right now,
but that is all I can say. It was affirmed on appeal.
I quite understand and am sensitive to your concerns and to
the rights of the disabled.
Senator Kennedy. The Supreme Court has recognized that
reasonable accommodations are about equal treatment for people
with disabilities, and they are needed for people with
disabilities to have the same opportunities as others. That is
the Tennessee v. Lane and U.S. Airways v. Barnett. Rather than
being special treatment, rather than equality, that was a very
important concept that was rooted in the Americans with
Disabilities Act, and that is enormously important to have the
Act interpreted in that way.
Judge Boyle. And I'm committed to that, Senator, both as a
District Judge, and in the event that I move to a different
court, I will continue to be committed to that. And I very much
appreciate your comments on it.
Senator Kennedy. I just have a few more questions, Mr.
Chairman.
Do you stand by your opinions that Congress exceeded its
authority by allowing individuals to sue States for disability
discrimination and public programs?
Judge Boyle. Is that the Brown v.--
Senator Kennedy. It is just about whether you--that we
exceeded the authority by individuals being able to sue when
you have disability discrimination in public programs, should
we--
Judge Boyle. No. I think the only issue that I've ruled
on--and it was a discrete issue. It was not focused on the
Americans with Disabilities Act so much as it was focused on
Section 5 of the 14th Amendment and whether there had been a
constitutional abrogation of sovereign immunity. And quite
honestly, the law appeared to be the way I wrote it, and it was
affirmed, and I couldn't get around that.
Senator Kennedy. On the issue on criminal justice, the
Fourth Circuit has repeatedly reversed decisions in criminal
cases, often for making the same clear error more than once.
You were twice reversed for wrongfully allowing a criminal
suspect to go free, in U.S. v. Braswell, and United States v.
Wolfe, several criminal cases the Fourth Circuit held that you
committed plain error, an error so severe that it undermines
the fairness, integrity or public reputation of the court
proceedings. That is the Fourth Circuit holding.
You were reversed for plain error for permitting the
Government to break a plea agreement in United States v.
Garrison. You were reversed for plain error for mistakes you
made in empaneling a juror, United States v. Hanno. You have
been reversed for plain error in sentencing cases, United
States v. Barry. The list goes on.
In matters regarding the guilt or innocence and whether
someone goes to jail for how long, it is crucial that judges
get the law right. So given your record in the criminal cases,
how we possibly feel a sense of confidence in you with regard
to the courts?
Judge Boyle. Thank you, Senator. I've handled a lot of
criminal cases, felonies and misdemeanors, jury trials and
pleas and sentencings over these several years, and it has been
my commitment to recognize and provide all criminal defendants
the criminal process with their rights and dignity, and
obviously I've been criticized at times. That's part of the
world of working in the criminal justice system. But you have
my commitment--
Senator Kennedy. Politics too.
[Laughter.]
Judge Boyle. Yes.
Senator Kennedy. Let me just, there are two final areas.
Judge Boyle. Certainly.
Senator Kennedy. You have misapplied the law to denying
claims by citizens based on the right to free speech, the
Edwards v. City of Goldsboro. You improperly dismissed the
First Amendment claims by Police Officer Sergeant Ken Edwards,
who has been suspended for teaching courses on concealed
handgun safety. The Fourth Circuit held that you abused your
discretion by failing to allow Sergeant Edwards to amend his
complaint before you dismissed his case. Federal Rules of Civil
Procedure clearly require that permission to amend a complaint
shall be freely given when justice so requires. The Fourth
Circuit ruled that you ignored well-settled law, that
permission to amend a complaint can be denied only if it would
be futile, is requested in bad faith or would result in
prejudice to the defendant. So how could you not be aware of
this basic requirement in Federal rules and well-settled
interpretation be followed?
Judge Boyle. Thank you, Senator. I hope I'm not being too--
Senator Kennedy. No, it is fine.
Judge Boyle. I remember that case well, and that's the
liability of my being here. And that was a police officer who,
as you mentioned, was working moonlighting, and I mentioned
that earlier in our conversation here today, and he was
disciplined. He wasn't suspended. He was given some discipline.
And he brought a First Amendment 1983 Civil Rights claims
against the police department.
Well, the issue was whether his speech, his work in this
moonlight job, was public or private speech. And it was pretty
manifest to me--and I think the outcome of the case
ultimately--which we don't have to worry about today--was that
it was private speech. So the case was dismissed on those
ground.
The fact that it has been, you know, sort of given a life
of its own is nothing that I have any control over, but it was
a public/private speech case, and there was no animus or lack
of respect for police officers and the rights and dignity of
police officers. There's a whole body of case law about quasi-
military, i.e., police, fire and what rights they have within
their organization to free speech and--I won't go into that.
But anyway, thank you.
Senator Kennedy. As I understand, it dealt with teaching
courses on concealed handgun safety?
Judge Boyle. The State had adopted a permitting law
sometime around then, allowing you to carry a concealed weapon.
And he was teaching in a community college, my memory is, and
there was a general policy in his police department--can't
remember which one, I think it may have been Goldsboro--in his
police department against engaging in quasi-police outside
activity. And that was more or less the long and the short of
it.
Senator Kennedy. Did you feel that his right to amend his
plea failed to meet the Federal Rules of Civil Procedure that
says that he is able to amend the complaint shall be freely
given when the Fourth Circuit ruled that you ignored the well-
settled law--it is not me that is saying that. It is the
Federal Court, it is the Circuit that is saying that you
ignored it. It is not me saying it, your judgment about whether
it is public/private teaching, public expression, private
expression. The Fourth Circuit said you ignored the well-
settled law, and I am just wondering the reasons why.
Judge Boyle. Again, I apologize for being defensive, if
that's the way it appears. I'm not trying to be. I'm just
trying to be--explain it. The dismissal motion had been well
briefed and the facts were focused on that, and it appeared to
me that the amendment, I believe, would have been futile
because the critical issue was whether the speech was private
or public, and that wasn't going to change by the amendment.
But that's an imperfect memory of how things worked.
Senator Kennedy. You have served as a judge on the District
Court for 20 years, and in that time you have authored over
1,000 opinions, the vast majority of which you chose not to
publish. Most of those unpublished opinions have still not been
given to the Committee. I believe the American people are
entitled to know your record on the district before you are
promoted to a lifetime position on the Federal Court of
Appeals. Do you have any problem in submitting your unpublished
opinions to the staffs?
Judge Boyle. Thank you, Senator. Everything that I do, as
certainly you well know, is a matter of public record, and so
my opinions are filed with the court and are there with the
case files, and everything I've done has been open and subject
to public scrutiny. And I'll be more than happy to work with
the Committee to resolve this.
Senator Kennedy. I have some others, Mr. Chairman. I'll
submit additional questions. I want to thank you very much,
Judge Boyle, for being here this afternoon.
Judge Boyle. Thank you very much, Senator.
Senator Graham. Thank you, Judge Boyle. I know we should
stop, but I just want to make a few points. I know you do not
feel well, and thank you for being here today, and I thank
Senator Kennedy for I think a pretty good exchange.
As I understand Brown v. North Carolina Division of Motor
Vehicles, it is not about whether the Americans with
Disabilities Act is a good thing or a bad thing, it is about
whether or not the State, when the State finds itself having to
comply with Americans with Disabilities Act, whether or not we
in Congress wrote the statute to absolve the 11th Amendment
sovereign immunity, and that is the issue. It is about the role
of the State when the State finds itself as a defendant. The
State has constitutional protections in our Constitution, and
how that Act affected the 11th Amendment was later decided in
University of Alabama v. Garrett, very much along the line of
thinking that you had in Brown.
When it comes time to amend the complaint in the case that
you are talking about with the police officer, I think the
concern that some people have is that you just for some reason
were hard over. If your belief was that the amendment would not
change the outcome based on your reasoning, that is something
that was helpful to me.
You have had 12,000 cases they tell me, somewhere in that
neighborhood. You have had 1,200 appealed. According to the
Administrative Office of the Courts, which is a group of people
in the Federal Judiciary that keep count of what is the
reversal, our numbers say that 92 of the 1,200 were reversed,
which would be a 7.5 percent reversal rate, and that the
national average is 9.7. If there is any doubt about that, I
would like our staffs to get together and see if we can come up
with common agreement.
The last thing that I would make a comment about, Judge
Boyle, is that after 20 years and 12,000 cases, the American
Bar Association unanimously agreed that you are well qualified,
and thank you for coming.
Judge Boyle. Thank you.
Thank you, Senator Kennedy.
Senator Kennedy. Thank you.
Judge Boyle. May I be excused?
Senator Graham. Yes, sir. Thank you.
Next we will have our next panel. Would you please raise
your right hands, please?
Do you solemnly swear the testimony you are about to give
before the Committee is the truth, the whole truth and nothing
but the truth, so help you God?
Judge Dever. I do.
Mr. Conrad. I do.
Senator Graham. Thank you both for coming. We will start
with Mr. Conrad. Do you have your family here?
STATEMENT OF ROBERT J. CONRAD, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Mr. Conrad. I do, Senator.
Senator Graham. If you would like to introduce them.
Mr. Conrad. I have my wife, this June, my wife of 25 years,
Ann Conrad with me, and I would note for the record that on my
20th anniversary I spent the day testifying before Senator
Specter 5 years ago.
I have two children with me, Kimberly Conrad and Branden
Conrad who's a midshipman at the United States Naval Academy.
My mother, Dorothy Conrad, is here from Chicago, Illinois, as
is my sister-in-law, Mary Conrad, and her two daughters,
Bethany and Anna Conrad.
My father- and mother-in-law are here from Greensboro,
Charlie and Mazie Atkinson, as is their daughter, Barbara
Atkinson and her son, Will Young.
Senator Graham. Welcome. You all must have come up in a
bus.
[Laughter.]
Senator Graham. I am very impressed. Welcome to all of you.
Would you like to make a statement?
Mr. Conrad. No, sir.
[The biographical information of Mr. Conrad follows.]
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Senator Graham. Judge, would you like to introduce your
family?
STATEMENT OF JAMES C. DEVER, III, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Judge Dever. Yes. Thank you, Senator.
With me is my wife of nearly 20 years, Amy Dever, and our
three children, Maggie Dever, who's our youngest; Patrick Dever
and Colum Dever. And my parents, James and Kathy Dever, are
here, as is my sister, Sharon Fleischman.
Senator Graham. Would you like to make a statement?
Judge Dever. No, Senator, other than to thank the President
for the nomination, the Committee for holding this hearing, and
for the support of Senator Burr and Senator Dole.
[The biographical information of Judge Dever follows.]
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Senator Graham. Wise choice by both of you I think.
Mr. Conrad, could you tell us how your experience as U.S.
Attorney has prepared you for the job?
Mr. Conrad. Yes, sir, thank you for that opportunity. I
have been a U.S. Attorney for 3 years and an Assistant U.S.
Attorney for 15 years before that. Preceding my time in the
U.S. Attorney's Office I was a private practicing attorney
engaged in litigation both civil and criminal
I have had an opportunity to participate in the civil and
criminal justice system in the Western District of North
Carolina, and that participation has given me a great respect
for the necessity of justice for every litigant in the courts
of the United States. And the President nominating me and my
opportunity to be here at a confirmation hearing with the hope
and possible expectation of presiding over civil and criminal
trials is a great blessing. I look forward to it.
Senator Graham. If you could try to describe to a fifth
grade civics class what a Federal judge's job is, what would
you tell them?
Mr. Conrad. I think his job is to administer justice, both
in the criminal and civil context. I might make a sports
analogy and say a judge's job is to call balls and strikes, not
to play on one team or the other, but to be the neutral arbiter
of disputes in the courts. And I think a judge ought to conduct
that job with a measure of humility, seeing it as an
opportunity to serve justice and not as a personal position of
prestige. And I think I would tell them that the judge--a very
important component of a judge's job is to treat fairly both
the parties that come before them as well as their attorneys.
Senator Graham. Thank you.
Judge Dever, how long have you been a magistrate?
Judge Dever. A little over a year, Senator.
Senator Graham. How has that prepared you for the task at
hand?
Judge Dever. Well, Senator, thank you for that question. It
has prepared me in having moved, as Mr. Conrad spoke about,
from the role of an advocate to the role of an impartial
arbiter, and as a Federal Magistrate Judge I've handled cases,
both civil cases and criminal cases, which many of which will
be very similar to the cases that if I'm fortunate enough to be
confirmed will come before the District Court. And it has been
a very helpful experience, and an enjoyable experience to be in
public service in that role.
Senator Graham. From your time as magistrate have you seen
any mistakes or common practices that you would like to change
if you got to be a judge yourself, Federal Judge?
Judge Dever. I wouldn't say mistakes as such, Senator, but
I think one of the things that I've certainly tried to do and
would hope to continue to do is to be respectful of the role of
the judge within the courtroom, and be respectful of the
parties and the litigants. I think it's very important for a
judge to remember that it may be his or her tenth matter of the
day, but to that person before them, those litigants, it's the
most important case in the world, and a judge needs to treat it
that way. And I've certainly tried to do that, and if I'm
fortunate enough to be confirmed, will try to continue to do
that.
Senator Graham. Both of your resumes for the job are very
impressive. You have a lot of good life experiences that
prepared you well for the role ahead. I think I speak on behalf
of many members of this Committee, hopefully the entire
Committee, that the job you are about to take on is very
important. It is a way to serve the public. Wearing the robe,
to me, is a awesome responsibility and I am looking for people
who can wear it humbly, because with a stroke of a pen you can
affect people's lives in a dramatic fashion. And it is a
lifetime appointment, and you have lived, both of you, lives
worthy of the robe, and your Senators spoke well of you, and
your families should be proud.
I look forward to voting for you on the floor. I hope that
comes sooner rather than later. With that said, the hearing
will stand adjourned, and any matters can be submitted. We will
leave the record open until 6:00 p.m. on March the 10th.
To your families, thank you. Safe travels back home. Good
luck in your future endeavors. Thank you both.
Judge Dever. Thank you.
Mr. Conrad. Thank you.
[Whereupon, at 4:25 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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NOMINATIONS OF JOHN RICHARD SMOAK, OF FLORIDA, TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF FLORIDA; BRIAN EDWARD SANDOVAL, OF NEVADA, TO
BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA; HARRY SANDLIN MATTICE,
JR., OF TENNESSEE, TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
TENNESSEE; MARGARET MARY SWEENEY, OF VIRGINIA, TO BE A JUDGE FOR THE
UNITED STATES COURT OF FEDERAL CLAIMS; AND THOMAS CRAIG WHEELER, OF
MARYLAND, TO BE A JUDGE FOR THE UNITED STATES COURT OF FEDERAL CLAIMS
----------
THURSDAY, SEPTEMBER 29, 2005
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 1:32 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, presiding.
Present: Senator Hatch.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Senator Hatch. We are happy to welcome all of you here
today for these judicial nomination hearings, and we have Hon.
Majority Leader of the U.S. Senate, Senator Frist, and we will
go with you first, and then we will go with Senator Alexander,
and then we will just--well, if Senator Reid shows up, I will
go with him second, and then go right across the board.
Senator Frist, we are happy to hear from you.
PRESENTATION OF HARRY SANDLIN MATTICE, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE, BY HON.
BILL FRIST, A U.S. SENATOR FROM THE STATE OF TENNESSEE
Senator Frist. Mr. Chairman, thank you, and it is an honor
to be before the Committee today, and it is with great pleasure
that I come to introduce ``Sandy,'' Harry S. Mattice, Jr., who
has been nominated by President Bush to serve on the United
States District Court for the Eastern District of Tennessee.
Sandy is joined today by his wife, Janet, and welcome to both
of them. I had the opportunity to see them a bit earlier today.
Sandy is a native of Chattanooga and a graduate of the
University of Tennessee, where he earned both a bachelor's
degree and his law degree. As an attorney, Sandy has enjoyed a
successful career in private practice and in public service. He
practiced law for almost 17 years with the firm of Miller and
Martin in Chattanooga, focusing primary on business
investigations, including securities, tax, and white-collar
crimes.
In 1997, Sandy served a brief stint here on Capitol Hill.
My former colleague, Fred Thompson, asked Sandy to serve as a
senior counsel to the Senate Governmental Affairs Committee
during the special investigation of the 1996 Federal election
campaigns. After leaving Washington, Sandy returned to private
practice in Tennessee and later joined the law firm of former
Senate Majority Leader Howard Baker.
Sandy's most recent job has been United States Attorney for
the Eastern District of Tennessee. He was nominated by
President Bush in 2001, and since that time he has served with
distinction. In this role, Sandy manages Federal prosecutions
for Tennessee's largest judicial district, encompassing 41
counties and 2.5 million citizens. His office has worked with
local and State law enforcement to lead the State's East
Tennessee's Methamphetamine Task Force, which serves as one of
the best examples of effective Federal, State, and local
cooperation.
I have had the real privilege of knowing Sandy for many
years and give him my highest recommendation to serve on the
Federal bench. Sandy respects his colleagues and in turn has
earned their respect and admiration, and he has proven his
merit as a skilled attorney and a talented prosecutor.
On Tuesday of this week, the American Bar Association gave
Sandy its highest possible rating, unanimously well qualified
to serve as a Federal judge. In addition to his many
professional qualifications, he is an honest, moral person, a
man of honor and integrity. He is devoted to his family and
active in his local community. I am confident that he will
serve with honor on the Federal bench.
Mr. Chairman and Committee members, I thank you for holding
the hearing and allowing me to introduce this truly, truly
distinguished Tennessean, and I urge my colleagues on the
Committee to support Sandy's nomination. As Majority Leader, I
look forward to bringing Sandy's nomination to the full Senate
soon and voting yes for his confirmation.
Thank you, Mr. Chairman.
Senator Hatch. Well, thank you, Mr. Leader. That is high
praise indeed, and Mr. Mattice has got to be very happy that
you showed up and said a few words.
With that, we know you are busy, and we know you have a lot
to do, so we would be happy to release you.
We will turn now to the distinguished Democrat Leader in
the Senate, Senator Reid, for your remarks.
PRESENTATION OF BRIAN EDWARD SANDOVAL, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA, BY HON. HARRY REID, A U.S.
SENATOR FROM THE STATE OF NEVADA
Senator Reid. First of all, Mr. Chairman, let me say
something about the man that Brian Sandoval will succeed. A
friend of mine by the name of Howard McKibben served that court
with distinction, a trial judge in Nevada that everyone looked
up to. For example, he was recently recognized by the Nevada
Advisory Council of Prosecuting Attorneys for his commitment to
improving the administration of justice in Nevada. He has
received award after award. But what I would like to say about
Judge McKibben is that he was fair. He was a man who had the
utmost respect of the attorneys who appeared before him, both
those he ruled for and against.
I ask unanimous consent that my full statement be made part
of the record.
Senator Hatch. Without objection, we will put it in the
record.
Senator Reid. Brian Sandoval will be an asset to the State
of Nevada as a judge and to our country. I have had the
distinct pleasure of offering this job to Brian twice. When the
Democrats were in charge back here, I had a Committee of one
that chose the people that went on the court, and I was that
committee. And even though I am a Democrat and he is a
Republican, I called Brian to see if he wanted to be a Federal
judge. He at that time decided that he didn't. He had family
considerations that he felt were such that he couldn't do that.
One of the reasons that I have always so admired Brian is
because of his family. I am not well acquainted with his
family, but I know of his family. I know his family because of
Brian always talking about his family. And it is obvious when
he expresses to me his--one of the reasons that he is looking
forward to this job is so that he can spend time with his
children, more time with his children. He does not have to
worry about campaigning in Elko or Las Vegas or Reno. He can
spend time with his family.
Mr. Chairman, John Ensign is a very gracious person in many
different ways. He is a very generous person. When he was
elected, he indicated that he would have--for every fourth
judge, Federal judge we got, that choice would be mine. Senator
Ensign chose three. My choice came along, and I chose Brian
Sandoval. I appreciate Senator Ensign for being fair with me,
and he has no obligation to give me any appointments. He did it
because he thought that would be fair, and I appreciate it very
much.
I think as a result of that bargain we are going to get a
real good judge. Brian is a young man. He can serve with
distinction on that court for many, many years, and he will
serve with distinction.
Words are not able to express to this Committee what a fine
man he is. There has been a lot of squabbling in recent years
here with judges. Brian Sandoval will cause no squabbles.
Everyone will vote for him. He is a class act. I wish that I
had the opportunity someday to appear before him. As a judge I
know that he would serve well whatever client that I
represented. I have done a lot of work in the trial courts, Mr.
Chairman, and I just think that he is somebody that will be--as
I look back on my days in the courtroom, somebody that I would,
if I had the opportunity to serve before him, say here is the
kind of judge that we should have.
So, Brian, and your family, I wish you the very best.
Senator Hatch. Well, Mr. Sandoval, it is a real tribute to
have the Democrat Leader of the Senate, and, Senator Reid, it
is a real tribute to you that you put politics aside in these
matters, and I appreciate it. We are grateful to have you here.
With that, we will turn to Senator Alexander.
PRESENTATION OF HARRY SANDLIN MATTICE, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE, BY HON.
LAMAR ALEXANDER, A U.S. SENATOR FROM THE STATE OF TENNESSEE
Senator Alexander. Thank you, Mr. Chairman.
Mr. Chairman, it is a pleasure for me to join the Majority
Leader, Senator Frist, in appearing today to introduce Sandy
Mattice to serve as United States District Court Judge. I can
only echo the high praise that Bill Frist offered in his
settlement.
Sandy is an excellent choice to succeed Judge Al Edgar in
Chattanooga. Judge Edgar served with distinction. I have known
him a long time. We rode the same bus to Boys State together in
1957. Al Edgar served in the legislature in the 1970's. He has
been an extraordinarily good United States District Judge. So
Sandy Mattice has some big shoes to fill.
But Sandy's resume, as Senator Frist pointed out, suggests
that he is certainly able to fill those. Graduating from two of
our finest universities, working for two of our best law firms,
active in a number of charitable organizations, on the adjunct
faculty at the University of Tennessee, active in the local bar
association, a lifelong Tennessean, he has all of the qualities
that should make him an extraordinarily good United States
District Judge.
I also think it is worth pointing out that, if past history
is any indication, he has a great future ahead of him. When
Senator Howard Baker was picked to serve as Vice Chairman of
the Senate Watergate Committee in 1973, he turned for help to a
young lawyer then making his name in Tennessee, Fred Thompson.
Fred Thompson, of course, eventually became Senator Fred
Thompson, and when he was Chairman of the Governmental Affairs
Committee, Senator Thompson opened a special investigation into
the 1996 Federal election campaigns, he took a page from
Senator Baker's book. He looked around Tennessee. He tapped an
outstanding young man to help him with that. And it was Sandy
Mattice, who was Fred Thompson's senior counsel.
So if history repeats itself, following his time as a
Federal judge, Sandy Mattice may very well have an opportunity
to serve in elective office. Or if he is really successful, he
might become a movie star.
[Laughter.]
Senator Alexander. So, Mr. Chairman, it gives me a lot of
pleasure to be here today, and I want to especially
congratulate Sandy Mattice's family. I know this is an
important day for them. Thank you for giving me this time to
give my highest recommendation to the President's nomination of
Sandy Mattice to be United States District Judge in
Chattanooga.
Senator Hatch. Well, thank you, Senator Alexander. I really
appreciate your testimony. I don't think we could have a better
delegation of Senators than you and Senator Frist recommending
a judge for us, so we appreciate it. Thanks so much.
Senator Ensign, we are going to turn to you now.
PRESENTATION OF BRIAN EDWARD SANDOVAL, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA, BY HON. JOHN ENSIGN, A U.S.
SENATOR FROM THE STATE OF NEVADA
Senator Ensign. Thank you, Mr. Chairman. I want to thank
you for having this hearing today so that we can bring forward
someone who we think is a great Nevadan and someone who will be
a terrific representative for us on the Federal District Court
in the State of Nevada.
Brian Sandoval is our Attorney General. He is the first
Hispanic to be elected statewide in the State of Nevada, but it
is the character of the person that has brought my confidence
in Brian Sandoval. He is a tremendous father. He is here with
his entire family. We actually took pictures this morning, and
he has a beautiful wife and kids. Two of his children, from
what I understand, are missing school today, and that would
probably upset them dearly. But he is somebody who has always
bridged across the aisles, whether it was being appointed by a
Democrat Governor to serve in the State of Nevada. On the
Nevada Gaming Commission, he was the youngest person in our
State's history to be the chief gaming regulator. And he was,
as I mentioned, appointed by a Democrat at that time.
Today before us, because of the situation that Senator Reid
and I have worked out between us, we have a sharing agreement
where we consult with each other on our judges that we bring
forward, and this happens to be Senator Reid's pick. I get
three when there is a Republican, he gets one; when it reverses
around, we go the other way. And Senator Reid has decided to
bring forward a Republican Attorney General to be on the bench,
and somebody we both agree is an outstanding choice for the
bench, for the district court in Nevada.
His qualifications are part of my full statement. I would
like to ask unanimous consent to bring that full statement as a
part of the record.
Senator Hatch. Without objection.
Senator Ensign. And just to make a couple of last comments,
we are very proud of the entire district court in the State of
Nevada. I honestly could not point out a weakness in our entire
bench in the whole State of Nevada on the Federal district
court. Because of that, we have very high standards to make
sure that whoever is going to fit there is not going to drop
below a certain level. And no question in my mind that Brian
Sandoval will meet the standard that we have set for the court
in the State of Nevada. So I enthusiastically join my
colleague, Senator Reid, in bringing forward Brian Sandoval to
be the next representative for the Federal district court in
the State of Nevada.
Mr. Chairman, I know that when he testifies, is given the
chance, and if you have questions, you will be impressed by his
intellect, by his character, and his integrity. And I thank
you, Mr. Chairman.
[The prepared statement of Senator Ensign appears as a
submissions for the record.]
Senator Hatch. Well, thank you, Senator Ensign. That is
wonderful of you to take time to come and chat with us about
Mr. Sandoval. I am sure he is going to make--General Sandoval,
I should say. He is going to make a great judge, no question
from what you and Harry Reid have said. And, of course, I have
heard about him, too, so I am really grateful to have you here.
Thank you so much.
Well, we may have one or two others come in to testify as
Senators, but until then, let's just set all of you judgeship
nominees up on the table.
While we are doing that, we will put the statements of
Senator Warner and Senator Allen into the record as if fully
delivered.
[The prepared statements of Senator Warner and Senator
Allen appear as submissions for the record.]
Senator Hatch. All right. If you would all 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. Smoak. I do.
Mr. Sandoval. I do.
Mr. Mattice. I do.
Ms. Sweeney. I do.
Mr. Wheeler. I do.
Senator Hatch. Take your respective seats, Mr. Smoak over
here, Mr. Sandoval, Mr.--is it pronounced Mattice or Mattice?
Mr. Mattice. Mattice.
Senator Hatch. OK. Ms. Sweeney, Mr. Wheeler, and then if
Senator Nelson comes, we will interrupt to take his statement.
Let me just say I would like to thank each one of our
distinguished nominees for their presence here today and for
their willingness to serve our country. We have before us here
an impressive array of legal experience and expertise, and as
diverse as each of your careers has been, your resumes show a
common commitment to public service, private excellence, and
community action.
Now, while each of you can be justifiably proud of your
respective accomplishments--and they have been many that have
really brought you to this point in your careers--I am sure
each one of you would readily admit that any success is more
easily achieved and certainly sweeter with the support of your
families. For those family members who are here with our
nominees, I want to thank all of you for your hard work and
your sacrifices to support your husbands and wife.
Mr. Mattice, I would like to thank you for being here. I
know you are no stranger to these hallowed halls as a former
senior counsel to the Senate's Governmental Affairs Committee,
and even after that, here you are again. It shows how dumb you
are, is all I can say.
[Laughter.]
Senator Hatch. You fortitude alone merits our commendation,
I have to say. But it is your exceptional work both in private
practice and in public service here in the U.S. Senate and as a
U.S. Attorney for the Eastern District of Tennessee that has
rightly earned you the respect of your peers and a unanimously
well qualified rating from the American Bar Association. That
is quite an achievement, and I look forward to seeing you on
the Federal bench for the U.S. District Court for the Eastern
District of Tennessee.
Mr. Sandoval, you couldn't have had two better people come
and testify for you. They are both excellent Senators. They
both testified from their hearts, and I thought they did a good
job for you. You have accomplished a great thing by getting
both of them to come and testify for you, and both of them to
agree together.
Now, both of them have praised your work as Attorney
General for the State of Nevada, and from what I know about it,
the praise is well deserved. And we appreciate you as a
neighbor to our home State of Utah. I just want you to know
that.
Your notable participation in high-profile legal matters in
the State and Federal courts and your tenacious protection of
the public I think will be a great asset to you as you continue
to serve the people from the Federal bench.
Now, Mr. Smoak, with 30 years of legal experience
demonstrating a long-standing commitment to your community in
Florida, you are a perfect choice to assume the bench as judge
for the U.S. District Court for the Northern District of
Florida. In addition to your excellence in private practice,
you have shown an unsurpassed commitment to pro bono service,
and you are going to be a superb addition to the Federal
district court and the Federal bench.
We also have two nominees here for the Federal Court of
Claims before us today, and it is impossible to say which one
of you is better qualified. You both are so well qualified
because your credentials are both so stellar.
Ms. Sweeney, your work as a Special Master on the Federal
Court of Claims mediating and adjudicating complex vaccine
cases under the National Childhood Vaccine Injury Compensation
Act makes you a natural choice to serve as a judge on this very
specialized court. In addition, you have strongly demonstrated
your commitment to the principles of freedom and justice by
your service in the Department of Justice working with our
Nation's intelligence agencies before the little known but very
critical FISA court in our ongoing struggle to combat worldwide
terrorism. So you have a wide experience there, too.
You have served this Nation well in the past, and I am
certain you are going to really continue to do a great job on
the Court of Claims.
I will be with Senator Nelson in just 1 second.
Mr. Wheeler, you, too, are a natural choice to assume a
position on the Federal Court of Claims. With over 30 years of
experience in private practice specializing in Government
contracts, publishing eight articles on the subject, and
appearing numerous times before the court that you have now
been nominated to join, I cannot think of better qualifications
for this nomination. And I commend you for your desire to
continue this work and to serve on this particular very, very
important bench, as far as I am concerned.
With that, before we take each of your testimonies, we will
turn to Senator Nelson. We are delighted to have you here,
Senator Nelson. We look forward to your testimony.
PRESENTATION OF JOHN RICHARD SMOAK, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA, BY HON. BILL
NELSON, A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Nelson. Thank you, Mr. Chairman, and I am here on
behalf of one of our Floridians, Mr. Smoak, for appointment to
the United States District Court. This gentleman has served his
Nation before, and I want to thank him for his offer and
willingness to serve it again.
His service began when he graduated from the United States
Military Academy, and he was highly decorated for service in
Vietnam. And then he earned his J.D. from the University of
Florida. He settled in the Panhandle town of Panama City, close
to where my ancestors came 175 years ago, down in Port St. Joe.
And he has been practicing civil law for over the past 30
years, and during that time he, of course, represented a wide
variety of clients, from truck drivers to small business owners
to national corporations in many areas of the law. And I think
that broad experience is going to serve him well as a Federal
district judge.
Clearly, he is a leader in his community, and he has been
in so many distinguished organizations. And I might just
mention that Florida Trend magazine has named him one of
Florida's top defense lawyers. And on top of all that, he holds
a commercial pilot's license.
Mr. Smoak has the unique understanding of the Northern
District of Florida. He has been for now 15 years appointed by
the chief judge as a member of the Advisory Committee to study
and make recommendations to improve the court's operations, and
a number of those recommendations have been adopted in the
Northern District.
Clearly, Mr. Chairman, he is highly qualified. He is well
respected in his community. I know that. And I along with
Senator Martinez strongly believe that he is going to make an
outstanding addition to our Federal bench.
Thank you, Mr. Chairman.
Senator Hatch. Well, thank you, Senator. It is awfully good
of you to take time from what I know is a real busy schedule to
come over here and testify. It means a lot to us, and your
testimony is very, very important.
Senator Nelson. Thank you.
Senator Hatch. Thank you so much for being here.
Well, I could sit here and give you all a rough time, but I
am not known for that because I know of your reputations, and I
think each of you is qualified to serve in your respective
positions. And, frankly, these positions are extremely
important. I think it is the courts that have saved the
Constitution over the years, not so much the Congress or the
Presidency. We pass unconstitutional stuff all the time. We may
not think it is, but we find out later that it is. Where I
think the courts have, by and large, been a great salvation to
our country, to me the Federal courts are absolutely crucial to
our freedoms and to our democracy and to the various liberties
that we all hold near and dear. And the trial courts, in the
case of the Federal district courts, are extremely important
because that is where the vast majority of cases are disposed
of. And that is where people feel they get a fair shake or they
don't.
So I want to commend each of you for being willing to leave
your practices and you, Mr. Sandoval, being willing to leave
your Government service in a great State. And you two who are
up for the Federal Court of Claims, I am very grateful that you
are willing to serve there. It is a very important court. A lot
of people do not realize what it does, but it is extremely
important to this country. So I am grateful to have all of you.
Let me just start with you, Mr. Smoak. You have had a
distinguished career as a private practitioner, and as I
understand it, you have appeared in court regularly throughout
your career. And obviously you have gained some insight from
all of this experience that you have had, the professional
experience you have had that will influence your Federal
judicial temperament as a Federal district court judge.
Now, tell me how these experiences are going to help you to
be a better district court judge.
STATEMENT OF JOHN RICHARD SMOAK, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF FLORIDA
Mr. Smoak. Mr. Chairman, I have come to realize over the
years that a citizen's contact with the courts is often the
worst experience of their life. With the exception of the most
jaded or the most hardened ordinary citizen, it is a terrifying
experience. And I think we can do more, and I think it puts a
continuing obligation on anyone who sits on the bench to keep
that in mind and to treat people with respect, to treat them
with courtesy, and to be the immediate face of our country's
judiciary by being fair, by being patient, and perhaps even
more important, by being prepared and engaged and willing to
work hard.
Senator Hatch. That is great.
[The biographical information of Mr. Smoak follows.]
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Mr. Sandoval, you have had a lot of experience in State
government as a public servant there, having served as a Nevada
State Assemblyman, a Commissioner of the Nevada Gaming
Commission, which in and of itself is a big-time job out there,
and currently as the State's Attorney General. You have gained
a lot of insight in your professional life. How has this all
prepared you for being a Federal district court judge?
STATEMENT OF BRIAN EDWARD SANDOVAL, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEVADA
Mr. Sandoval. Thank you, Mr. Chairman. I have been very
blessed in my life to serve as a legislator, to serve as a
regulator, and now to serve as our State's Attorney General.
And through my experiences as a private practitioner and as--
Senator Hatch. You have been Attorney General for 7 years,
right?
Mr. Sandoval. Mr. Chairman, no; for approximately 3 years.
Senator Hatch. Three, OK.
Mr. Sandoval. But my experiences in Federal and State
courts as well as before our State Supreme Court and the amount
of litigation that I have been confronted with and have had an
opportunity to participate in, with all that experience I feel
that--I believe that the Committee will feel that my
qualifications satisfy the necessary requirements to be an
effective Federal district court judge. If I'm fortunate to be
confirmed, I will treat all litigants with dignity and respect.
[The biographical information of Mr. Sandoval follows.]
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Senator Hatch. Thank you.
Mr. Smoak, you have an excellent record in pro bono work,
especially, as I understand it, with the American Bar
Association Vietnamese Refugee Legal Assistance Program. So I
want to commend you for that.
And, Mr. Sandoval, you have always maintained an open-door
policy for people in your respective positions, and I think
that has been a very, very good thing on your behalf.
Now, Mr. Mattice, I just want you to know, when I was a
janitor out at BYU, I was cleaning the floors and cleaning the
steps, and down the steps came absolutely the most stunningly
beautiful young girl I had ever seen in my life. I stood there
leaning on my broom, transfixed, and her name was Marcia
Mattice. And I don't know whether you are relatives or not, but
if you are related to her, that is good enough for me.
[Laughter.]
STATEMENT OF HARRY SANDLIN MATTICE, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE
Mr. Mattice. Thank you, Mr. Chairman.
Senator Hatch. You have had a very distinguished career as
well, and you have gained a lot of insights from your
professional experience. How is that going to help you to do
your job as a Federal district court judge?
Mr. Mattice. Thank you, Mr. Chairman. I thank you and the
Committee for holding these hearings today.
Senator Hatch. By the way, anybody who can put up with Fred
Thompson as long as you did, he has got to really be good, is
all I can say.
Mr. Mattice. Thank you, Mr. Chairman.
Senator Hatch. That is meant to be a compliment both ways.
I think Fred is a tough, smart, good guy.
Mr. Mattice. He is. Thank you.
Senator Hatch. And he was a great Senator, and we miss him
around here. And he was a great ``handler'' for Judge Roberts,
who just got confirmed 78-22 today. So we really loved having
Fred back in the Senate doing that, and I know you loved
working for him.
Mr. Mattice. I did. Thank you, Mr. Chairman.
Mr. Chairman, to answer your question, I have, in fact,
been very, very fortunate to have a very varied career and to
have been able to fulfill a lot of different roles as an
attorney. However, I have to say over the past 4 years and when
I was sworn in as United States Attorney for the Eastern
District of Tennessee, I told my staff that I couldn't think of
any higher honor or privilege for an attorney than to stand up
in a court of law in this great country and say that I
represent the United States of America. I meant that then, and
I certainly 4 years hence mean it now.
I suppose if I can think of any greater honor, if I am
fortunate enough to be confirmed by the Senate, it is to serve
as United States district judge in my home State and help
promote respect for the rule of law, which I feel is so
critical to our way of life, to our form of Government, and to
our citizens generally.
So, again, as you point out, I have been very fortunate in
my career, and if I should be confirmed by the Senate, I look
forward to taking this next step.
Senator Hatch. You are all going to get confirmed. We will
make sure that happens. OK?
[The biographical information of Mr. Mattice follows.]
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Ms. Sweeney, you have had a lot of experience as a special
master. How has that prepared you for this job on the Court of
Claims?
STATEMENT OF MARGARET MARY SWEENEY, NOMINEE TO BE A JUDGE FOR
THE COURT OF FEDERAL CLAIMS
Ms. Sweeney. I have been very blessed to have the privilege
to serve as a special master since 2003. It has made me very
familiar with the inside operations of the court as well as the
courtroom experience in vaccine litigation cases. Those cases
are often very complex and involve very delicate issues. It
isn't just the science that is terribly complex. We are dealing
with families with sometimes very severely injured children or
families whose child received a vaccine and died. And I think
one has to bring a tremendous sensitivity to any type of
litigation, but particularly to those types of cases.
We also hear petitions that involve injured adults as well,
and when people have debilitating injuries and the Congress has
set up a mechanism so that citizens have redress, one must look
very carefully at those cases. And it has been my privilege to
do that since 2003.
Of course, before that, I was with the Justice Department
for about 16 years, and during that time the bulk of my
practice was before the U.S. Court of Federal Claims. And so I
became intimately familiar with the full rules of the court and
had tremendous courtroom experience, which I brought with me to
the Office of Special Master and has served me well.
And, of course, before that, I had the privilege of
clerking for the former chief judge of court, who is here
today, Mr. Chairman, Senior Judge Loren A. Smith. And not only
was he my employer for 2 years, he was my former constitutional
law professor. And I think I learned even more about the
Constitution and the rule of law as the chief judge's law clerk
than I did as his student. He is a tremendous individual, and
it was a tremendous blessing, and everything that he taught me
from his example with being completely prepared before you go
into a courtroom, right to how you treat litigants and
witnesses, has served me well over the years.
Senator Hatch. Thank you.
Ms. Sweeney. Thank you.
[The biographical information of Ms. Sweeney follows.]
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Senator Hatch. I appreciate it.
Mr. Wheeler, you have been representing the Global Fund on
a pro bono basis, and I want to commend you for that. Please
explain how you got involved with the Global Fund and tell us
just a little bit about it.
STATEMENT OF THOMAS CRAIG WHEELER, NOMINEE TO BE A JUDGE FOR
THE COURT OF FEDERAL CLAIMS
Mr. Wheeler. Thank you, Senator. I would be happy to tell
you a little bit about my work for the Global Fund, which has
probably been one of the most satisfying and enjoyable projects
that I have worked on in my 30-plus years of legal work.
The Global Fund to Fight AIDS, Malaria, and Tuberculosis is
based in Geneva, Switzerland, and since January of this year, I
have headed a team of six or seven lawyers from our firm in
assisting the Global Fund in setting up an Office of Inspector
General for all of their operations. It is about a $6 billion a
year organization that issues in-country grants to basically
Third World developing countries around the world who are
afflicted with these diseases. And in the course of this
representation, not only have I traveled to Geneva,
Switzerland, which has been something that I haven't always
done in the world of Government contracts, but I also had a
tremendously rewarding trip to Kenya, where I saw on the
ground, first person, the work of the Global Fund in trying to
tackle some of these horrific diseases.
So that is basically what I have done for the Global Fund.
[The biographical information of Mr. Wheeler follows.]
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Senator Hatch. Well, thank you. I think this is as good a
panel as we have had in all the years I have been here on the
Judiciary Committee.
I would like to start with you, Mr. Smoak, and just go
across the board and please introduce those who are here with
you, your family members or anybody you would care to
introduce. You can just stand, and if they would stand as you
introduce them.
Mr. Smoak. Thank you, Mr. Chairman. Our two daughters,
Kathleen and Elizabeth. Kathleen works here in the House of
Representatives.
Senator Hatch. We know who you are.
Mr. Smoak. Elizabeth lives in Vermont.
Senator Hatch. That is great. We are glad to have both of
you here.
Mr. Sandoval?
Mr. Sandoval. Thank you, Mr. Chairman. My wife, Kathleen;
my son, James; my daughter, Madeline; my mother, Terry
Sandoval; my father, Ron Sandoval; my stepmom, Marion Sandoval;
and my baby daughter is outside the room to keep the peace, Mr.
Chairman, but my baby daughter, Marisa, and my mother-in-law,
Jean Teipner.
Senator Hatch. Well, it is so nice to have all of you here.
This is great.
Mr. Sandoval. Thank you, Mr. Chairman.
Senator Hatch. Mr. Mattice?
Mr. Mattice. Thank you, Mr. Chairman. I would like to
introduce my wife, Janet, who has come from Tennessee to join
me here today. She is not only the joy of my life, but probably
more responsible than any person here for me being here today.
Senator Hatch. That is great, Janet. We are glad to have
you here.
Ms. Sweeney, do you have--
Ms. Sweeney. Thank you, Mr. Chairman. Before I introduce my
wonderful husband and daughter, I just want to thank you for
holding the hearings today and allowing us to be part of this
great constitutional process.
My daughter is here with some of her school mates from St.
Louis School, and they do have excused absences. And their
teachers just thought this was a tremendous learning experience
for them, and I want to thank you for that, and, of course, our
President for nominating me, and to the Justice Department for
all their help with the nomination process. So thank you for
that.
Senator Hatch. Thank you.
Ms. Sweeney. My wonderful husband, Stephen Dillard; and my
daughter, Carolyn Elizabeth; and my extended family, former
Chief Judge Loren Smith, and my law clerk, Kristin Baczynski,
who is my right arm and dear friend.
Senator Hatch. That is great. I think it is a tribute to
have Judge Smith here. He is a long-time favorite and friend of
mind.
Ms. Sweeney. Thank you, sir.
Senator Hatch. That is great. Great to have him here.
Yes?
Mr. Wheeler. Yes, Mr. Chairman, I also am just really and
truly honored and privileged to be here, and I echo the
sentiments of Ms. Sweeney.
Sitting right behind me is my wife, Janet, of 35 years. We
met in 1966 at Gettysburg College in Pennsylvania, and here we
are today.
In addition, we have two grown children, Cristin and Craig,
who could not be here today, Cristin is a wedding planner in
Colorado Springs, and our son, Craig, is a young businessman in
Norwalk, Connecticut.
I also have just a small number of friends and colleagues
who are here providing support today: Susan Commins from
Bethesda, Maryland, and then also Robert Reiser and Christopher
Kimball.
Senator Hatch. Well, great. Great to have all of you here.
We welcome you all. I meant to do that at the beginning and
forgot in my desire to ask all these tough questions of the
witnesses.
[Laughter.]
Senator Hatch. I know a lot about each of you. I don't have
to ask any questions beyond this. I just want you to know that
you will all be put on hopefully the next markup. Generally,
you are put over for a week in many cases, so don't think that
that is anything unusual. If we can do it next week, it would
be great. But probably the second week we hopefully will report
all of you out.
We congratulate you. We commend you for being willing to
serve our country in these distinguished ways, and we are
grateful for your family and friends who are here. It is great
for them to come. And we are grateful for the Senators who have
appeared as well.
So, with that, you have my support. Let's hope that that
will help you.
[Laughter.]
Senator Hatch. And we will just move on and hope that we
can get you through as quickly as possible. And we know that
all of you will serve very well.
So thanks so much and great to be with you. With that, we
will recess until further notice.
[Whereupon, at 2:13 p.m., the Committee was adjourned.]
[Submissions for the record follow.]
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NOMINATIONS OF WAN KIM, TO BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS
DIVISION, DEPARTMENT OF JUSTICE; STEVEN G. BRADBURY, TO BE ASSISTANT
ATTORNEY GENERAL FOR THE OFFICE OF LEGAL COUNSEL, DEPARTMENT OF
JUSTICE; SUE ELLEN WOOLDRIDGE, TO BE ASSISTANT ATTORNEY GENERAL,
ENVIRONMENT AND NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE; AND
THOMAS O. BARNETT, TO BE ASSISTANT ATTORNEY GENERAL, ANTITRUST
DIVISION, DEPARTMENT OF JUSTICE
----------
THURSDAY, OCTOBER 6, 2005
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:33 p.m., in
Room 226, Dirksen Senate Office Building, Hon. John Cornyn,
presiding.
Present: Senators Cornyn, Hatch, DeWine, Kennedy, Kohl, and
Durbin.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. Good afternoon. I want to thank Senator
Specter for scheduling this hearing. This involves four very
important positions within the Department of Justice and is the
first step toward getting these positions filled. If confirmed,
each of these nominees will fill vital positions within our
government and it is my hope we can get these nominations voted
out of the Committee in the near term and through the Senate as
soon as possible.
I understand Senator Specter, the Chairman of the full
Committee, may be coming, and also some others of our
colleagues, but I know that since we have three o'clock votes,
what I want to do is promptly get to our first distinguished
panel and give them an opportunity to make any statement they
wish and then we will turn, of course, to the nominees.
At this time, the Chair would recognize Senator Allen for
any introduction he would care to make.
PRESENTATION OF THOMAS O. BARNETT, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, ANTITRUST DIVISION, DEPARTMENT OF JUSTICE, BY
HON. GEORGE ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman, Senator Cornyn,
Senator DeWine and others, members of the Committee. Thank you
for holding this hearing to consider, amongst others, the
nomination of a fellow Virginian, Thomas Overton Barnett, as
Assistant Attorney General of the Antitrust Division of the
U.S. Department of Justice.
I have a statement, and my colleague, Senator Warner, also
of Virginia, has a statement which I would like to be made part
of the record in his presentation of Mr. Barnett, as well.
Senator Cornyn. Without objection.
Senator Allen. Tom is joined, I know, today by his wife,
Alexa, and at least one of their children, Braden, a two-and-a-
half-year-old young man. Besides his qualifications, I found it
very impressive that his son, two-and-a-half-year-old son,
wanted to grab on to Daddy. I always thought with my kids,
whenever I grabbed them or picked them up, they would always be
screaming, ``Mama, Mama.'' So he is also a really good father.
It is embarrassing to me, but nonetheless, that shows he is a
wonderful father and I am sure he will want to introduce his
bride and son when he is presented.
He is, Mr. Chairman, very well qualified for this important
position. He grew up in Nebraska. He now for the last 15 years
has had the fortune to call the Commonwealth of Virginia home.
You can read about his outstanding academic credentials in law
school and undergraduate school.
He came to Virginia first clerking for Hon. Harrison Winter
of the U.S. Court of Appeals for the Fourth Circuit, which is
located in Richmond. After finishing that clerkship, he joined
the prestigious Washington law firm of Covington and Burling
and moved then to Virginia permanently.
During his almost 14 years as an antitrust attorney at
Covington and Burling, Tom rose to become a partner and Vice
Chair of the firm's Antitrust and Consumer Protection Practice
Group. Tom's practice included mergers, litigation, and
counseling across a range of industries, including e-commerce
and other issues involving the Internet. Tom has also co-taught
an advanced antitrust seminar at my alma mater, the University
of Virginia School of Law, and he taught a course at the
Georgetown University Law Center on antitrust and sports. In
fact, in the law practice, Tom represented colleges and also
professional sports leagues.
Tom joined the Antitrust Division of the Justice Department
in April of 2004 as Deputy Assistant Attorney General
responsible for civil enforcement. Since June of this year, he
has served as the Acting Assistant Attorney General with
responsibility in the Antitrust Division.
Mr. Chairman, I know that you know, and members of this
Committee, how important our antitrust laws are in this country
to make sure that our citizens enjoy the healthy competition
and choice that comes from an antitrust sense of competition
and not monopolies. I think it makes our prices lower, it makes
our products better, and companies compete with one another.
The Antitrust Division and its Assistant Attorney General
are on the front lines in this fight. Tom's academic
achievements, his distinguished legal career as an antitrust
attorney, and his enforcement experience to date have all
prepared him very well for this important position. I have no
doubt that Tom Barnett will be an effective, knowledgeable, and
fair enforcer of our antitrust laws. I am delighted that the
President has chosen Tom Barnett and I hope that you, Mr.
Chairman, and this Committee will act as swiftly as practicable
to make sure that he gets his position confirmed and going to
work with a full portfolio for the American free enterprise
system.
I thank you for your consideration and attention.
Senator Cornyn. Thank you, Senator Allen. I appreciate your
personal comments and observations on the nominee.
We will now turn to our other colleague of three colleagues
in the Senate and one from the House, our distinguished Senator
from Oregon, Senator Smith.
PRESENTATION OF STEVEN G. BRADBURY, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL FOR THE OFFICE OF LEGAL COUNSEL, DEPARTMENT OF
JUSTICE, BY HON. GORDON SMITH, A U.S. SENATOR FROM THE STATE OF
OREGON
Senator Smith. Thank you, Mr. Chairman, Senator DeWine. It
is my privilege today to introduce Steve Bradbury to you and to
say how delighted I am that the President has nominated him to
serve as Assistant Attorney General for the Office of Legal
Counsel at the Department of Justice.
Though Steve and his family currently resident in Maryland,
as I do, I am proud to say that we both hail from the State of
Oregon. Born and raised in Portland, Oregon, he attended Oregon
public schools until college and he has become one of our
State's best and brightest citizens. I am confident that
members of the Committee will quickly appreciate the range of
qualities and professional experience that Steve will lend to
the position of Assistant Attorney General when you hear from
him.
He has been with DOJ and worked there with distinction
since 1991. I know he will continue to do an outstanding job in
that Department. Steve has held a number of positions at the
Department, beginning as an attorney advisor in 1991, and after
much hard work, he has moved up the ranks and is currently
Acting Assistant Attorney General at the Department.
In addition to his government experience, Steve brings
other special qualities, along with a beautiful family that he
will introduce to you. He clerked at the appellate level for
Judge Buckley in the U.S. Court of Appeals for the District of
Columbia, as well as for Judge Clarence Thomas at the United
States Supreme Court. In addition, Steve also developed a good
reputation in private practice. He was an associate at
Covington and Burling and a partner at Kirkland and Ellis. I am
sure you recognize the names of these firms as they both have
stellar legal practices.
With government, judicial, and private practice experience,
Steve has the kind of professional background that will give
him the kind of broad, common-sense perspective we need in
government.
Of course, his academic credentials speak for themselves.
He is a product of the best in private and public education,
from Washington High School in Oregon, to Stanford University,
and then on to the University of Michigan Law School, where he
graduated Magna Cum Laude. Steve has excelled in all of his
academic credentials.
Therefore, Mr. Chairman, I commend him to you. I am
confident he will continue to serve our country with honor,
integrity, and with the utmost professionalism, and I urge his
nomination to move forward and that it be confirmed.
Senator Cornyn. Thank you for your introduction, Senator
Smith.
Senator Lautenberg, could we hear from you next?
PRESENTATION OF WAN KIM, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE, BY HON.
FRANK LAUTENBERG, A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thanks very much, Mr. Chairman. I have
a unique honor to introduce a New Jerseyan. His name is Wan
Kim. Mr. Kim has been nominated to be Assistant Attorney
General for Civil Rights at the Department of Justice. If
confirmed, he would be the first Korean American and the first
naturalized citizen in this position. We are very proud of
that. Coming from New Jersey, the State where the Bill of
Rights was first signed, we consider it a distinct honor to be
able to introduce Mr. Kim here.
He has had a particular sensitivity to civil rights issues
because of his personal background as a minority in our great
country. Mr. Kim's parents came to the United States from South
Korea in the 1970's. They came to New York with virtually no
education and just a couple of hundred dollars. They worked at
menial tasks. Their mission was to help their children gain a
footing in our country. They worked 7 days a week, and
eventually, they bought a small business and a home.
The lesson of hard work rubbed off on Mr. Kim. He graduated
at the top of his high school class, went on to Johns Hopkins
University and the University of Chicago Law School.
He is not new to the Civil Rights Division. He worked there
since 2003 as Deputy Assistant Attorney General with oversight
of the Criminal, Educational Opportunities, Housing, and Civil
Enforcement Sections. He has led a team of more than 300
attorneys and he will safeguard Americans' voting rights and
combat discrimination. He has worked issues like police
brutality, hate crimes, as well as protecting the rights of the
disabled.
Concerns have been raised of late about civil rights in the
country. We want to make sure that we have been aggressive
enough in pursuing these cases. But Mr. Kim has affirmed his
commitment to equality, and he said this. ``I am clearly in a
politically appointed position, but my job is to enforce the
laws. Show me a violation of the statute, or if I find a
violation of the statute, I will bring those cases.'' It is
nice to hear that kind of recognition, that kind of a
commitment.
So I congratulation Mr. Kim and his family on the honor of
this nomination and I hope that he proves to be the great
choice that I think he will be to enforce our Nation's civil
rights laws.
Mr. Chairman, I thank you and the Senator from Ohio greatly
for permitting us to present Mr. Kim to you.
Senator Cornyn. Thank you very much, Senator Lautenberg,
for that introduction.
We will now turn to our colleague from the House,
Representative Dan Lungren.
PRESENTATION OF SUE ELLEN WOOLDRIDGE, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION,
DEPARTMENT OF JUSTICE, BY HON. DAN LUNGREN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Representative Lungren. Thank you, Mr. Chairman, and thank
you, Senator DeWine, for having us here. It is my privilege and
honor to introduce to you the nominee for Assistant Attorney
General for Environment and Natural Resources, Sue Ellen
Wooldridge, a fellow native-born Californian.
Born in Riverside, California, she spent her early years in
Santa Barbara County before her parents, who were both
educators, decided to move to the Northern part of the State,
in Willows, California, where they thought it was a good idea
to have their children grow up on a small farm, which she did.
She learned responsibility and self-reliance there, attended
the University of California at Davis, where she was the
captain of the women's basketball team, graduated Phi Beta
Kappa before she went on to Harvard University.
I first met Sue Ellen Wooldridge when she was an associate
at the law firm I joined when I left Congress the first time
around. I spotted her talents at that time, and when I became
Attorney General of the State of California, I invited her to
serve as one of my Special Assistant Attorney Generals, and
there she served with distinction. Her tenure there was marked
by fairness, by integrity.
Frankly, she is brilliant, but she invites other views. She
has a capacity to work with people with differing viewpoints
and to bring them around to a common position. She was probably
one of only two people in the United States who could tell you,
without looking it up, the contours of the tobacco settlement
that we made as Attorney Generals with the tobacco industry.
She was one of two people I designated to negotiate on behalf
of the State of California. Then for a number of years, she was
counsel to a number of States of the Union in litigation that
transpired thereafter.
She has been General Counsel of the Fair Political Practice
Commission for the State of California. She has served as
Deputy Chief of Staff of the Department of Interior for
Secretary Gale Norton, and for the last year and a half been
Solicitor of the Department of Interior.
Oftentimes, we are called upon to introduce people from our
State who have been nominated. It is rare that you get a chance
to be able to stand here and talk about someone you know so
well, about whom you would say the President could have done no
better. The only caution I would give you is never, ever get
involved in a golf game with her, and certainly never, ever
challenge her to a long drive contest, because I will tell you,
you will lose it.
Senator Cornyn. Thanks for that advice as well as that
introduction.
[Laughter.]
Senator Cornyn. I must extend our gratitude to the entire
panel for being here. We know you have many other conflicts.
Thanks for making the time to make these important
introductions.
I would like to ask the next panel to take their seats,
please.
I have no further opening statement that I would make, but
I am going to recognize Senator DeWine for any statement he
would like to make.
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, I just want to add my words
of welcome and congratulations to all four of our nominees
today. We are glad to have you with us. We look forward to your
testimony.
As Chairman of the Antitrust Subcommittee, I want to give a
particular welcome to Mr. Barnett and let me commend him for
his work that he has done, and frankly, the way the Antitrust
Division has functioned under his leadership as Acting
Assistant Attorney General since June. I think you have done a
great job and we just look forward to your testimony today, but
also look forward to your continuing good work.
Thank you, Mr. Chairman.
Senator Cornyn. Thank you very much, Senator DeWine.
I see we are joined by our colleague from Wisconsin,
Senator Kohl. Senator Kohl, do you have any preliminary
comments you would like to make?
Senator Kohl. No, I do not, Mr. Chairman.
Senator Cornyn. Thank you very much for being here.
I would like to ask each of the panelists to stand and be
sworn. Do each of you swear that the testimony before the panel
today will be the truth, the whole truth, and nothing but the
truth, so help you, God?
Mr. Kim. I do.
Mr. Bradbury. I do.
Ms. Wooldridge. I do.
Mr. Barnett. I do.
Senator Cornyn. Thank you. Please have a seat.
I think it might be in order perhaps for each of you to
introduce any family members that you happen to have with you
here today. I know this is not just your day, this is their
day, too, and that none of us accomplish much without the love
and support of the people very near and dear to us.
Mr. Kim, would you care to introduce any of your family
members who are joining you here today?
STATEMENT OF WAN KIM, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL,
CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE
Mr. Kim. Yes, Mr. Chairman. Thank you. I would first like
to introduce my wife, Sarah Whitesell, and my two daughters,
Anna, who is five, and Abigail, who is three ,who I hope will
be staying with us for at least a little while.
I would like to introduce my parents----
Senator Cornyn. I wonder if you wouldn't mind standing so
we can identify you. Great. Thank you.
Mr. Kim. My parents, Hak Soo Kim and Chun Cha Kim. I am
grateful for them for coming down today----
Senator Cornyn. Welcome.
Mr. Kim [continuing]. And also to my in-laws, Dr .William
Whitesell and Mrs. Phyllis Whitesell, who I am also grateful
for being here with us today.
Senator Cornyn. Thank you very much, Mr. Kim.
[The biographical information of Mr. Kim follows:]
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Senator Cornyn. Mr. Bradbury, would you care to introduce
any of your family members who are here?
STATEMENT OF STEVEN G. BRADBURY, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL FOR THE OFFICE OF LEGAL COUNSEL, DEPARTMENT OF
JUSTICE
Mr. Bradbury. Yes. Thank you, Mr. Chairman. My wife, Hilde;
my son, James, who is 11; my son, Will, who is nine; my
daughter, Susanna, who will be turning seven in 2 weeks; and my
wife's parents, Barbara and Walter Kahn.
Senator Cornyn. Thank you very much for that introduction
and welcome to each of you. I am sure your children all got a
pass from school to be here.
[Laughter.]
Senator Cornyn. I am sure they will learn a lot in this
process, and I know they want to be here with their Dad.
[The biographical information of Mr. Bradbury follows:]
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Senator Cornyn. Ms. Wooldridge, would you care to introduce
any of your family members who are here?
STATEMENT OF SUE ELLEN WOOLDRIDGE, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION,
DEPARTMENT OF JUSTICE
Ms. Wooldridge. Yes. Thank you, Senator. My sister, Tricia
McCall, is here with me today. I would be remiss, though, if I
didn't mention that she is here representing my parents, Robert
and Patricia Wooldridge. My father recently passed away and my
mother is terrified of flying, so I kind of forewent the
opportunity to actually invite her to come today because she
would have been in a panic, but I am very lucky to have my
sister and friend with me today.
Senator Cornyn. Thank you very much, and welcome.
[The biographical information of Ms. Wooldridge follows:]
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Senator Cornyn. Mr. Barnett, would you care to introduce
any of your family?
STATEMENT OF THOMAS O. BARNETT, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, ANTITRUST DIVISION, DEPARTMENT OF JUSTICE
Mr. Barnett. Yes. Thank you, Mr. Chairman. I would like to
introduce my wife, Alexa, and our 2-year-old son, Braden, and
our--who impressed Senator Allen, and our 17-month-old
daughter, Avery. Along with them are my brother, Paul, who is
also a Virginia resident, and my cousin, the Reverend Jeffrey
MacKnight, and if I could just acknowledge my parents, who were
not able to be here in person but certainly without whose
support I would not be here.
Senator Cornyn. Thank you very much for those
introductions.
[The biographical information of Mr. Barnett follows:]
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Senator Cornyn. We will now turn to the opening statements
of the panelists, and Mr. Kim--oh, I beg your pardon. Senator
Hatch is here and has a statement he would like to make. As the
immediate past Chair of the Judiciary Committee, we always do
what Senator Hatch asks.
[Laughter.]
PRESENTATION OF WAN KIM, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE, BY HON.
ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH
Senator Hatch. That has not been my experience.
[Laughter.]
Senator Cornyn. I was just speaking for myself personally,
Senator.
Senator Hatch. You certainly are a very good friend, is all
I can say.
I am sorry I am so late, but I had to go to a funeral and
was put back in time, so thank you for giving me this
opportunity, Mr. Chairman.
It is with great pleasure and with the highest regard that
I introduce Wan Kim, a former member of our staff here on the
Judiciary Committee who has been nominated to be the next
Assistant Attorney General for Civil Rights for the Civil
Rights Division at the Department of Justice.
Wan has served at the Justice Department as Deputy
Assistant Attorney General in the Civil Rights Division for the
last 2 years. In that capacity, he has supervised more than 120
attorneys in the Criminal, Education, and Housing Sections of
the Civil Rights Division and has worked closely with the U.S.
Attorneys' Offices from across the country.
He has also served as a Commissioner on the Brown v. Board
of Education 50th Anniversary Commission and is a member of the
U.S. delegation to the Organization for Security and
Cooperation in Europe's Conference on Anti-Semitism in Berlin.
Wan graduated Phi Beta Kappa from Johns Hopkins University
while serving in the United States Army. Wan went on to law
school at the University of Chicago, where he was privileged to
serve on the law review, or put another way, they were
privileged to have him serve on the law review.
Wan clerked for D.C. Circuit Judge James Buckley, a
wonderful man, as we all know, a respected Senator and a great
judge. In addition, Wan has had 6 years of prosecutorial
experience, including serving as the Special Attorney to the
Attorney General in the prosecution of Timothy McVeigh and
Terry Nichols for the Oklahoma City bombing, as well as years
of experience as a civil litigator at Kellogg, Huber, Hansen,
Todd and Evans, one of the premier litigation firms in town.
Although these achievements are certainly enough to impress
anybody, they are even more remarkable when you consider Wan's
humble beginnings. Wan's parents came to the United States with
borrowed money, no education, and a strong desire to find a
better life. Although Wan and his sister were left in the care
of their grandparents in South Korea for a period of time, when
Wan was two months shy of his fifth birthday, they were
reunited with their parents in Queens, New York. His family
subsequently moved to Jersey City, where they purchased a small
luncheonette and later sold the luncheonette to run a
convenience store in Rahway near the train station. They all
worked 7 days a week, 365 days a year. In fact, Wan jokes that
one of his main motivations for joining the military was that
it was easier than working in the family business.
[Laughter.]
Senator Hatch. I am pleased that Wan's parents are present
today. To his parents, I would like to express how much I
admire all the sacrifices that they have made on Wan's behalf.
Let me see if I can do this. Let me say to you parents, [phrase
in Korean]. Now, I know that I didn't do a very good job. This
means to you parents that you worked hard and did a good job,
or your hard efforts paid off.
Before I close, let me just take a moment to share with my
colleagues my personal knowledge of Wan's qualifications. As
some of you may recall, Wan served as counsel to this Committee
during the 107th and 108th Congresses, working on criminal and
civil rights legislation. Wan is a very bright and hard-working
attorney. He is an excellent writer. His legal expertise and
effective negotiations skills made him someone I could send
into any situation, knowing that I would be well represented.
Wan is definitely somebody, a person you would want on your
team.
Most importantly, Wan is a good person, a father of two
beautiful daughters. He takes time out of his busy schedule to
make sure that his family can spend some quality time together.
He is a person of integrity and a person whose commitment to
public service shows how strongly he believes in doing what is
right.
If confirmed, and I know he will be, Wan would be the first
Korean American and the first naturalized American to serve as
Assistant Attorney General for Civil Rights. But Wan does not
want to be identified merely by his race or ethnicity. Rather,
he wants to be judged on his qualifications. It is on that
basis that I urge my colleagues to act quickly and favorably on
his nomination.
One final word. I have had a lot of people who have worked
with me on the Judiciary Committee and other Committees
throughout my tenure in the Senate and I have to say that Wan
is particularly special to me as not only a very intelligent
and aggressive, hard-working, decent and wonderful person, but
I think he is the right person at the right time for this Civil
Rights Division and I know that he will do a terrific job. So I
hope our Committee will mark him up and put him out as soon as
we possibly can, and, of course, get this work that he needs to
do down there going as fast as we can.
Thank you, Mr. Chairman, for your patience, and thank you,
Wan, for being willing to serve in the government, and thanks
to your folks for raising such a wonderful young man, and your
wife and baby. Thanks.
Senator Cornyn. Thank you, Senator Hatch, and I will assure
everyone that when Senator Hatch encourages us to mark him up
and send him out as soon as we can, that is a good thing.
[Laughter.]
Senator Hatch. That is a good thing.
Senator Cornyn. That is a positive thing.
At this time, I will recognize Mr. Kim for an opening
statement.
Mr. Kim. Thank you, Mr. Chairman. Thank you, members of the
Judiciary Committee, for holding this hearing. I just want to
make a few thank-yous and then move on. I have a prepared
statement, Mr. Chairman, that I wish to move into the record.
Senator Cornyn. Without objection.
Mr. Kim. First of all, I would like to thank the Committee
for holding this hearing.
Second of all, I would very much like to thank Senator
Hatch for supporting me, for supporting kindness over the years
which has really far outmeasured the little service that I was
able to provide for him during the course of a year or so.
I would also like to thank Senator Corzine and Senator
Lautenberg for supporting my nomination.
Of course, I would like to very much thank the President
and the Attorney General for this honor of having been
nominated for this important position. I am grateful beyond
measure for that support.
And last but certainly not least, and in fact, the most, I
would like to thank my family, my wife and my children and my
parents and my in-laws, for their support over the years.
Thank you, Mr. Chairman.
Senator Cornyn. Thank you, Mr. Kim.
[The prepared statement of Mr. Kim appears as a submission
for the record.]
Senator Cornyn. Mr. Bradbury?
Mr. Bradbury. I just have a few thank-yous, Mr. Chairman.
Mr. Chairman, Senator Kennedy, distinguished members of this
Committee, first, I want to thank this Committee for giving me
the opportunity to come before you today. It is the highest
honor of my professional career to appear before this
Committee.
I am also deeply grateful to Senator Smith for his kind
presentation. I thank the President for the trust and
confidence he has placed in me and for the honor of his
nomination. I also thank the Attorney General for his support,
for his leadership, and for his friendship.
Mr. Chairman, I would like to thank my mother, Cora
Bradbury, without whom I could never be here today.
Unfortunately, she passed away in 2003. Otherwise, I know she
would be the proudest person in the hearing room.
And last, I would like to thank my family. They are my
biggest supporters and the biggest source of my joy and pride.
I especially want to thank my wife, Hilde, for her love, her
devotion, her support, her sacrifices, and her wisdom.
Thank you, Mr. Chairman.
Senator Cornyn. Thank you.
Ms. Wooldridge?
Ms. Wooldridge. Thank you, Mr. Chairman and members of the
Committee. I took the opportunity to write down some remarks in
case I was not capable of a complete sentence today, so if you
will indulge me for a moment.
I would like to begin by thanking the President and the
Attorney General for this nomination. I am sobered by the
confidence that that nomination has demonstrated their
confidence in me. If I am confirmed, I will do everything to
merit that trust.
I thank you for holding this hearing today, particularly
Senator Specter, who is not with us yet, and of course to Dan
Lungren, who has now probably made it impossible for me to
swing a club without whiffing, since he has now bragged about
me publicly.
I am deeply aware of the responsibilities that I will have
if I am confirmed to be the Assistant Attorney General for the
Environment and Natural Resources Division. As you know,
through the litigation in the Federal and State courts, the
Division is responsible to safeguard and enhance the American
environment, to acquire and manage lands and natural resources,
and to protect and manage Indian rights and property.
The Division has approximately 700 people, including 425
attorneys. Currently, as Solicitor of the Department of the
Interior, I manage over 420 attorneys and support staff and
administer a budget of $60 million. I am the chief legal
officer and my job is to see that the Secretary and the
Department's bureaus carry out their mission, which is much
akin to the mission of the Division. I am told, in fact, that
the Department of Interior is some 30 to 40 percent of the
Division work that I will, if confirmed, be taking
responsibility for.
Prior to my service at Interior, I was a civil litigator in
both private and public practice, and for about 5 years, as Mr.
Lungren has told you, I was his special assistant where I was
responsible to him in many cases for his exercise of
prerogatives to bring affirmative enforcement litigation
against people accused of breaking the law. While these cases
were civil in nature, these cases gave me the experience in
what I believe is the most profound responsibility of the
public servant, that is the decision to apply the power of the
sovereign against persons or entities believed to have violated
the law.
While this type of decision should not be done lightly, I
believe it must be done consistently and impartially and
firmly. The question whether to prosecute violations of our
environmental laws is one that is often faced by members of the
Environment and Natural Resources Division and I do look
forward to working with them, the career prosecutors and
particularly the U.S. Attorneys with whom we partner in
bringing those cases.
I thank you very much for your attention and should this
Committee support the nomination by positively--I am sorry--and
the Senate vote to confirm me, I do pledge that I will carry
out my responsibility with dedication and integrity. Thank you.
Senator Cornyn. Thank you very much, Ms. Wooldridge.
Mr. Barnett?
Mr. Barnett. Thank you, Mr. Chairman and thank you, members
of the Committee. I am deeply honored and, in many respects,
awed to have been nominated by the President to be the
Assistant Attorney General in charge of the Antitrust Division.
I first want to thank Senator Allen for having taken the
time to introduce me today. I also want to thank my family and
in particular my wife, Alexa, without whose support and
patience I certainly could not be here today.
But more generally, I just want to make a brief statement
about the antitrust laws in the U.S. economy. In my view, the
strength and vitality of the U.S. economy is one of the great
wonders of the world and I believe that one of the principal
foundations of that strength are the nation's antitrust laws.
Accordingly, I approach the responsibilities of running the
Antitrust Division very seriously and I commit to this
Committee and to the American people that, if confirmed, I will
apply all of my abilities to the effective, efficient, and fair
enforcement of those laws. Thank you.
Senator Cornyn. Thank you very much.
We will now go to a round of questions. I would like to
start by asking Mr. Kim, two of the people who introduced you
made note of the fact that your family immigrated to the United
States, your parents did, and that they have dreamed the
American dream for you and your family. I was just wondering if
you could share with us, is there anything about your family's
experience or your personal experience in life you think that
will have a particular poignancy or application, given the fact
that you will be entrusted with enforcing the civil rights laws
of the United States?
Mr. Kim. Mr. Chairman, thank you for that question, and I
think the answer in a word is yes. My family immigrated to the
country. My sister and I immigrated separately a few years
afterwards, after my mother and father were able to become
established financially. I remember distinctly going to school,
not speaking a word of English. I remember, once learning
English, as an 8-year-old boy, quizzing my parents on the
citizenship that they were about to take. I understand quite
personally how important it was to my success that the nation's
laws guaranteed me an equality of opportunity, a chance to
succeed by working hard and by taking advantage of what America
has to offer, which is a chance, an equal chance to everyone on
a non-discriminatory basis.
If confirmed as Assistant Attorney General, it would be one
of my personal goals to make sure that every American citizen,
every American person, has the same chance to succeed that I
did, and that is a chance that is grounded in many respects
upon the nation's Federal civil rights laws.
Senator Cornyn. Thank you. I now want to turn to the issue
of human trafficking, an issue you and I discussed in your
courtesy visit in my office. I have been pleased by the
commitment made by the Department of Justice to make
prosecution of human trafficking laws a priority. This is
really a moral evil. I believe that it is equivalent to modern-
day slavery.
I have introduced legislation in the Senate that will help
strengthen and enhance the punishment of people who engage in
this scourge and I hope to be able to work with you and General
Gonzales and the Department, as well as my colleagues, to make
sure that you have all the tools that you need in order to
successfully prosecute those who would ply in human slavery.
Can we be assured that you will continue the aggressive
approach to prosecuting human trafficking laws if you are
confirmed?
Mr. Kim. Absolutely. Mr. Chairman, first, let me thank you
for your personal leadership on this issue. You have taken
great time out of your personal schedule to make sure that our
work on this issue has been recognized, that your interest on
that issue has been known, and that has been a great aid to us
in doing the work that we do in this area.
Certainly, this administration has spoken and proven its
commitment to enforcing the laws against human trafficking. The
President had made clear it is one of his priorities. The
Attorney General has made this clear. And the work that we have
done in the Civil Rights Division has made this clear.
We have more than tripled the number of human trafficking
prosecutions brought in this administration as compared to the
previous administration and these cases, once you start delving
into the facts of these cases, you realize that you are looking
at some of the most victimized persons ever and some of the
worst, most odious, and most horrific criminal defendants ever.
And it is because of these cases, the fact that we can bring
relief to so many victims and put away so many horrible
offenders, that the administration will continue to work hand-
in-hand with Congress and to the maximum extent permitted by
law to continue the work in combatting human trafficking.
Senator Cornyn. Thank you very much.
Mr. Bradbury, you have been nominated as Assistant Attorney
General for the Office of Legal Counsel, a critical job of
assisting the Attorney General in his function as legal advisor
to the President and executive branch. Could you tell us a
little bit about what your priorities are? What can we expect
from you, if confirmed?
Mr. Bradbury. Thank you, Mr. Chairman. They are really
fairly simple. The Office of Legal Counsel is, unlike many
other components in the Department, not a policy shop. We don't
do policy in the Office of Legal Counsel. We are a pure law
operation. So I don't bring any political agenda or ideological
agenda or goals in a political or policy-driven sense.
My goals really relate to the provision of legal advice.
That is the essential function of the office. My goals are to
do that as efficiently as I can, to hire the best people with
open minds who don't bring preconceived agendas to their work
but have the highest qualifications to objectively analyze
constitutional and statutory questions that the office gets,
and to provide advice in an efficient way to the President, to
the Attorney General, to the Departments of the executive
branch.
I think it is important that that advice be clear, that it
limit itself to addressing only the issues that are necessary
for the question presented, and that it do so in a clear way so
that the policymakers who rely essentially on that advice to
inform their policy decisions can understand it, that it can be
persuasive, and that they can take it as a solid given that
they then work from. It is a critical input to policy decisions
across the government, but it is not itself a policy-driven
enterprise, and so that is the perspective I bring to the
Office of Legal Counsel.
Senator Cornyn. Mr. Bradbury, a lot of attention has been
focused in Congress and across America, really, to the issue of
detention and interrogation of detainees in the global war on
terror. An August 1 OLC memo written by Jay Bybee discussed the
anti-torture statute, and that was revised in an opinion on
December 30, 2004, revising the Bybee memo's interpretation of
the statute.
Would you explain to the Committee what involvement you had
in the preparation of that second memo, if any?
Mr. Bradbury. Thank you, Mr. Chairman. Yes. Obviously, I
cannot discuss internal deliberations in the office, but I will
say that I was not in the Department of Justice back in 2002. I
was in private practice. My second stint in the Office of Legal
Counsel began in April of last year, 2004, when I came in to be
the Principal Deputy Assistant Attorney General. So I was not
at all involved in the Bybee memo of August 2002.
I was, at the time of the issuance of the December 30,
2004, memo, the recent reinterpretation of the Federal
prohibition on torture, I was the Principal Deputy in the
office and the Principal Deputy's function is to assist the
head of the office in reviewing and approving the opinions of
the office, and so in that sense, I did have that
participation.
I will say that I fully agree with the December 2004
interpretation of that statute by the office. It is the
binding, the authoritative interpretation of the office. And,
of course, I will apply that interpretation in any advice that
the office may give, and any advice we do give will be fully
consistent with that opinion.
Senator Cornyn. Thank you for clarifying that.
Observing the early bird rule, we now turn to Senator Kohl
for any questions he may have.
Senator Kohl. Thank you, Mr. Chairman.
Mr. Barnett, I have a few questions for you. The American
consumers are suffering from record high prices in gas, as you
know, in many places across our country, higher than $3 a
gallon. Immediately after the Hurricane Katrina disaster, gas
prices were even higher, reaching as high as $6 a gallon in the
Atlanta area.
We all recognize that gasoline prices and markets were
affected by disruptions in supply caused by the hurricane
damage, but we also wonder if these sharp price hikes were
justified solely by market conditions or perhaps other factors,
such as collusion, anti-competitive practices, or price
gouging.
I recognize that the Federal Trade Commission ordinarily
investigates antitrust issues related to oil and gasoline
rather than the Justice Department. However, the Justice
Department is solely responsible for prosecuting criminal
antitrust violations.
So I would like to ask you, Mr. Barnett, what steps has the
Justice Department taken to investigate possible criminal
antitrust violations regarding distribution or sale of gasoline
in recent months, and more importantly, will you make such
investigation a priority if you are confirmed at the Antitrust
Division?
Mr. Barnett. Thank you, Senator. I certainly agree with you
that the situation with gas pricing in the United States is a
very serious situation, that I am a consumer along with most
other Americans and I can see what is happening, as well. I
agree with you, it should be a priority.
The Antitrust Division is monitoring the situation. Our
Criminal Deputy has been assigned to and is a participant in
the Post-Katrina Interagency Task Force to investigation fraud
and abuse and we are particularly looking for signs of
collusive activity that we might pursue criminally. We have
also reached out to various other agencies to dialog with them
about any information that they may come up with that could
give us leads in that direction.
As you indicate, the Federal Trade Commission does have as
a practical matter principal responsibility for civil
enforcement in this industry. We do maintain very good
communications with the Federal Trade Commission, and to the
extent that their efforts identify any sign of collusive
activity, we can and will vigorously prosecute any--investigate
and/or prosecute any such action that we find.
Senator Kohl. Are you saying that in order for you to move
forward, you need first to have the FTC take action or make
comments or suggestions or what? How does that work?
Mr. Barnett. No, Senator. I am sorry if I left you with
that impression. What I meant to say, that was an additional
source of information for us and we are certainly confident
that if the FTC sees signs of collusive activity, that they
will refer that information to us.
In addition, as I say, we are part of the Katrina Task
Force. We are dialoguing with other agencies. We have
designated two of our chiefs in our field offices to have
responsibility to look for collusive activity, our Dallas and
our Atlanta field offices, and to--of course, they have people
working underneath them to see if we can ferret out any such
information. I can commit to you, Senator, that if I am
confirmed, this will be a priority.
Senator Kohl. I appreciate that, and I would just like to
ask you, as an observer, as we all are, of the scene, the oil
companies are making record profits. They never made as much
money as they are making now. At the same time, American
consumers are paying record high prices for gasoline, which is
what gives them their profits. Doesn't that make you wonder
whether or not the American consumer is paying a lot more than
they should be paying? After all, we are looking at an industry
in which the principals are making more money than they have
ever made before, while at the same time consumers are paying
more money than they have ever paid before. Understanding that
you have got to do your work as an investigator, isn't your
sense of probability in terms of what might be happening
piqued, to say the least?
Mr. Barnett. Yes, Senator, a situation of a sudden price
increase is something that gets an antitrust enforcer's
attention quite quickly. This is, in the first instance, I know
it is an area that the Federal Trade Commission has a very
active program in. They monitor 20 wholesale markets, 360
retail markets on a weekly basis. They currently have an open
investigation, is my understanding, on this specific issue.
As I say, we are also looking for evidence of anything that
would fall into the criminal realm, which is the realm that we
prosecute in the oil and gas industry, and we are focused on
that, and if confirmed, I will certainly continue that focus.
Senator Kohl. Thank you. One other question before my time
runs out. In the last year, we have seen a tremendous amount of
consolidation in the telecom industry. The biggest deals were
SBC's acquisition of AT&T and Verizon's acquisition of MCI, as
you know. These deals, if approved, will result in the most
fundamental reshaping of the telecom market since the Justice
Department broke up the AT&T monopoly more than 20 years ago,
and we held two hearings on these mergers in our Committee,
that is to say myself and Senator DeWine, last spring.
Many industry analysts believe that we are moving to a
telecom world in which consumers will basically have a choice
of only two companies for their telecom services, the regional
Bell company offering a bundle of services and a local cable
company offering a similar group of services.
Mr. Barnett, do you believe this result is likely, and at
the end of consolidation, should we be concerned about this
possibility, that is to say, just two choices, and will
consumers be forced to pay a price for the fact that these
mergers are resulting in a marked lessening of competition?
Mr. Barnett. Thank you, Senator. I certainly agree, the
telecommunications industry, the phone industry, is an
extraordinarily important one for the American people. It
affects all of us very directly.
We are acutely aware of the transactions that you referred
to. They are pending investigations, so I think I need to be
somewhat cautious about discussing them in too much detail. But
I can tell you that we have devoted substantial resources to
investigating those transactions. I know that we have received
and reviewed well over a million pages of documents. We are
taking those issues quite seriously.
The way we are approaching those transactions is to work as
hard as we can to understand what the facts are, to delve into
the way the markets work, and on the basis of that information,
to make our best assessment as to whether or not there is a
substantial lessening of competition in any relevant market. If
we find that to be the case, we will certainly pursue it
appropriately.
Senator Kohl. I thank you, Mr. Barnett, and I thank you,
Mr. Chairman.
Senator Cornyn. Thank you.
Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman. I don't want the
rest of you to think we are ignoring you, but I am the Chairman
of the Antitrust Subcommittee and Senator Kohl and I work
closely together--he is the ranking member--so we are going to
pick on Mr. Barnett here for a few more minutes.
Mr. Barnett, you and I talked a short time ago about the
fact that today, we have over 100 countries with antitrust
agencies, over 100 antitrust agencies in the world today. This
means that merging companies need to comply with really a whole
array of different antitrust standards, procedures in various
countries while they do business, even for mergers between two
American companies. It is a big issue for them and we hear a
lot about it.
What are U.S. companies likely to face in the future
procedurally and substantively as they attempt to deal with the
antitrust laws of other countries, and what role will the
Antitrust Division in our country play in ensuring that
American companies are treated fairly by other nations, and
what steps is the Antitrust Division taking to create some
uniformity in the procedural requirements imposed by the
various antitrust authorities throughout the world?
Mr. Barnett. Senator, I agree that the international arena
is one of the most important areas that we address. It is a
global economy and we deal, as you say, with 100 or so
antitrust regimes around the country. It creates complexities
for us as well as for the private sector.
We--if confirmed, I can assure you that it will continue to
be a priority for the Antitrust Division. This is really a
continuation of the policy of the people who preceded me, and
most recently Hugh Pate, who was personally engaged on these
issues and, I think, made substantial progress.
I would hope, if I have the opportunity to do so, to
continue working on several levels, through international
organizations such as the OECD or the International Competition
Network, where through dialog we can create what we call soft
convergence. The ICN, as just one example, has put out merger
best practices, merger recommendations guiding other regimes as
to what information they should ask for and what types of
procedures they should use in their merger review. Earlier this
summer, at the annual conference, there was information
suggesting that almost 50 countries had modified their laws and
regulations to conform more closely with those recommendations.
We will continue with those dialogs on a multilateral
basis. In addition, we engage in bilateral discussions. We have
annual meetings with the European Commission, with the Japanese
Fair Trade Commission, with the Canadians, with the Mexicans,
as well as working groups with Taiwan and other countries.
We will continue to devote resources to persuading and
encouraging those countries to adopt sound economic principles
in their antitrust enforcement, to adopt procedures that
minimize burdens, because we believe at the end of the day that
will help consumers across--not only American consumers, but
consumers in those countries, as well.
Senator DeWine. Let me turn to another antitrust issue. We
hear from people who talk to us about how long the Antitrust
Division's investigations take, not a new issue. It goes
without saying the Division--we understand the Division must
thoroughly examine the issues and you must take as long as
necessary to get all the facts and to make the decision.
On the other hand, it is always a concern if investigations
go for a long period of time. The very fact of the
investigation itself, the delay in a decision can really start
having an impact on the marketplace. The process itself starts
to have an impact on competition.
How do you think the Antitrust Division is doing in terms
of balancing these two concerns? How do you think you are
getting along, and what steps, if any, do you plan to take to
ensure that investigations last long enough to get to the
bottom of the issue, but no longer than that?
Mr. Barnett. Thank you, Senator. We do recognize that the
process has cost and can, in effect, have a drag on businesses
moving forward. I am glad to report that there have been steps
taken in recent years, originally implemented, there have been
some initiatives by Charles James with some additions by Hugh
Pate, to more closely monitor investigations at the managerial
level to try and make sure that we understand from staff where
things are, where they are going, identifying ways to short-
circuit, if you will, an investigation to get to a bottom-line
conclusion.
My impression is that we have made substantial progress in
that regard, but to quote a good friend of mine, Bill Kovasik,
the only best practice here is to continually strive for better
practices, and if confirmed, that is what I would continue to
do.
Senator DeWine. Good. Thank you very much. Thank you, Mr.
Chairman.
Senator Cornyn. Thank you, Senator DeWine.
Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, Mr. Chairman. If I could, I
would like to have my full statement printed in the record in
an appropriate place.
Senator Cornyn. Without objection.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
Senator Kennedy. Mr. Kim, congratulations. Congratulations
to all of you.
Mr. Kim, we are going to have the extension of the Voting
Rights Act coming up next year. We are beginning already to try
and work through and develop the support for it. Can we have
your unequivocal enthusiastic support in terms of getting an
extension of the Voting Rights Act?
Mr. Kim. Senator, first of all, thank you for your kind
words. I appreciate that.
Second, the Attorney General has stated, Senator, that the
Department of Justice is committed to working with Congress on
reauthorizing the Voting Rights Act and you certainly have my
support, along with the Attorney General's support.
Senator Kennedy. This is a very high priority. I expect to
introduce the reauthorization with the Chairman of the
Committee, Senator Specter, very soon. I know that Congressman
Sensenbrenner is working on this issue. It is a matter of
enormous importance. We want to work with you and the
Department extensively on this and make sure that we get it
done right.
Now, one area of particular concern has been the Division's
enforcement on the voting rights. This August, we celebrated
the 40th anniversary of the Voting Rights Act of 1965, one of
the most important and effective civil rights statutes. Private
citizens can bring the suits under the Act, too, but the
Justice Department enforcement is critical to its
effectiveness. But unfortunately, in recent years, the
Department has cut back on its enforcement actions. This year,
the Division has filed only two cases, racial or ethnic
discrimination against minority voters. In 2004, it didn't file
any cases at all, not one. And in 2003, it filed one case. In
2002, only two. That is not a very satisfactory record in light
of the continuing problem of discrimination against minority
voters across the country.
So if you are confirmed, what will you do to see that the
Department will more vigorously enforce the specific
prohibitions in the Voting Rights Act against discrimination?
Mr. Kim. Thank you for that question, Senator. To begin, I
believe that the work of the Voting Rights Section has been
very vigorous. Certainly with respect to enforcing Section 203
of the Voting Rights Act, it is my understanding that----
Senator Kennedy. It has been. I will give you that.
Mr. Kim [continuing]. Under this administration, we have
brought more lawsuits than in the previous 25 years combined.
Senator Kennedy. OK.
Mr. Kim. Also, last year, with regard to the 2004
elections, we launched the most vigorous monitoring effort
ever, putting more people in more States and more polling
stations than at any time in history.
So the Voting Rights Section has not been sitting on its
hands, Senator, but let me say this. At heart, I consider
myself to be a nuts-and-bolts litigator. I spent nearly my
entire career at the Justice Department, both as a career
attorney and as a political appointee, and with the sections
that I have supervised and had the privilege of supervising
over the past 2 years now, I have, when I came to the section,
tried to look through how they brought their cases, what cases
were pending, what cases had they brought, and tried to jump-
start smoothing out the litigation process. And in all the
sections that I have so far been afforded the luxury of
supervising and the privilege of supervising, the litigation
statistics have gone up.
I will bring, Senator, I pledge to you, that same focus to
bear with all of the other sections if I am confirmed by the
Senate, and certainly one of those sections would be the Voting
Rights Section.
Senator Kennedy. I certainly acknowledge with regard to the
bilingual provisions, but not with regard to the racial and
ethnic discrimination. Last year, for example, the Department
was extremely busy in going to court to oppose voters' interest
in several court cases, which is unprecedented.
For example, the Division opposed attempts by Michigan
NAACP and others to ensure that all the provisional ballots
cast by eligible Michigan voters were counted in the 2004
election. The Division argued that the Help America Vote Act's
creation of the provisional ballot did not give private
citizens any legal rights that they could enforce in court. In
fact, the Department was supporting attempts by certain States
not to count the votes of certain eligible voters.
But the Congress passed the provisional ballot requirement
precisely because we are so concerned about the violation of
the 2000 election, and fortunately, the Division's argument was
rejected by every court that heard the cases. So you had a lot
of activity, but not dealing with what the real purpose of the
Voting Rights Act was about.
Mr. Kim. Senator, I was not involved in that piece of
litigation, but it is my understanding that we made two
distinct arguments with respect to the Sixth Circuit litigation
that you mentioned. The substantive argument was that under the
Help America Vote Act, the provisional ballots were counted in
accordance with the rules of the State jurisdictions, and that
argument was accepted by the Sixth Circuit.
The argument that you refer to with respect to standing,
that the individual litigants did not have a cause of action
under HAVA, because HAVA--Congress under HAVA imposed sole
jurisdiction to enforce it upon the Attorney General, that
argument was rejected because the Sixth Circuit did agree that
1981 provided for collateral relief even though HAVA did not.
So, Senator, I respectfully would say that we----
Senator Kennedy. Well, the fact remains that in the recent
times, why the Voting Act was passed dealt with racial and
ethnic discrimination. That is why the Voting Rights Act was
passed. We have had a long exchange on this with Judge Roberts
and everyone else, about the 1982 Act and why it was extended,
the effects test and the intents test, and the record is out
there.
I want to be very clear that what has been the record by
the Justice Department and the Civil Rights Division over the
recent years in terms of the enforcement has not been good. If
your testimony is that you are satisfied with it, then I want
to hear about it, and you have just lost my vote, quite
frankly, because I think it is so blatant and flagrant about
the failure to act on it, and standing on its face, I can give
you the figures on it. And if you can give some justification
and rationale why there has been such a dramatic drop on it
when there has been such a need for it, I am glad to hear it.
Mr. Kim. Senator, what I was hoping to say--and perhaps I
misled you and I apologize for that--is that I am committed to
vigorously enforcing all the laws. I believe that what I was
trying to respond to was some specific questions that you
raised. I think there is room for improvement across the
Division, certainly in the Voting Rights Section and certainly
in all of the other sections that I have not had the privilege
of supervising at this point. If confirmed, I would bring the
same rigor and intensity that I have brought to the sections
that I currently supervise to the Voting Section, and, again, I
believe that there is always room for improvement.
Senator Kennedy. Well, if you want to provide additional
information of what you might do in that area, I would be very
grateful to you for it.
If you are confirmed, will you continue to observe the
bright line separation between the Civil Rights Division role
of enforcing civil rights and also protecting ballot access and
the Criminal Division's role in preventing voter fraud and
other crimes associated with the elections?
Mr. Kim. Senator, I am sorry, but I don't have the answer
to that question because I am not simply aware of what that
line is. I would have to consult with the career staff and
people in the Criminal Division to better understand what those
rules are right now.
Senator Kennedy. Well, the basic point is actually the
Civil Rights Division has been keeping the civil rights
enforcement work separate from the criminal enforcement work. I
met last year with the Criminal and Civil Rights Divisions on
the matter, and all of them gave assurance that the
administration had a bright line rule that the Civil Rights
Division personnel cannot be used to look into voter fraud. The
principal reason is that if Division personnel are looking for
fraud or investigating criminal voting matters, minority
communities would be reluctant to cooperate with them in civil
rights investigations. That has been a policy in the Civil
Rights Division. I don't know whether you are familiar with it.
Do you see it now?
Mr. Kim. Senator, I certainly appreciate what you are
saying. I am not familiar with the policy.
Senator Kennedy. All right. Fair enough.
Mr. Kim. Certainly what----
Senator Kennedy. You will take a look at it, will you?
Mr. Kim. Absolutely.
Senator Kennedy. And it seems to me that it makes a good
deal of sense and is something that you would like to try and
see.
There is a letter here that I will ask be put in the
record.
Senator Cornyn. Without objection.
Senator Kennedy. I am over my time. Thank you, Mr.
Chairman.
Senator Cornyn. Senator Durbin?
Senator Durbin. Thank you very much, Mr. Chairman. My
thanks to the panel, to all. And, Mr. Kim, congratulations to
you.
Mr. Kim. Thank you, Senator.
Senator Durbin. I am told by my staff that your nomination
is significant in three respects: you would be the first Korean
American in charge of the Justice Department Civil Rights
Division; the first immigrant to lead the Civil Rights
Division; and the first former staffer to Senator Orrin Hatch
to lead the Civil Rights Division. So historic on three counts.
And it is an important Division, which I am sure you agree.
The issue of race and civil rights, it has been said, is
the unfinished business of America, and I would like to speak
to one aspect of that unfinished business and the activities of
the Civil Rights Division.
On August 26th of this year, the Civil Rights Division
approved a new voting law in the State of Georgia relative to
the requirement of an ID. Senator Obama from my State, my
colleague, has introduced a resolution, which I have joined
with 22 others in cosponsoring, critical of that law and the
Civil Rights Division approval of the law.
The New York Times said of this new law, ``In 1966, the
Supreme Court held the poll tax was unconstitutional. Nearly 40
years later, Georgia is still charging people to vote, this
time with a new voter ID law that requires many people without
driver's licenses, a group that is disproportionately poor,
black, and elderly, to pay $20 or more for a State ID card to
vote. Georgia went ahead with this even though there is not a
single place in the entire city of Atlanta where the cards are
being sold.'' In the words of the New York Times, this law is
``a national disgrace.''
Now, there was a group that came together under the
leadership of former Secretary of State James Baker and former
President Carter, and they were critical of this law as well.
Mr. Kim, what was your involvement in the decision to
approve the Georgia voter ID law?
Mr. Kim. Senator Durbin, I had no involvement in that
decision. I have had the privilege at the Department of Justice
to work in many capacities. Since I have been in the Civil
Rights Division, I have supervised three litigating sections. I
have never had the privilege of supervising the Voting Rights
Section.
Senator Durbin. Do you agree with the Department of Justice
decision to approve the Georgia law?
Mr. Kim. Senator Durbin, as I understand the factual
analysis involved, the issue is one of retrogression, and that
is the issue that is the legal standard defined by Section 5.
It is the legal standard that has been enunciated upon time and
time again by the Supreme Court. I understand the factual
submissions in this case were in the thousands of pages. I have
not had the chance to review it myself. I certainly have no
reason to believe that that factual determination was wrong in
this case, but I cannot tell you that--I cannot resolve that
answer without actually personally going through and reviewing
all those materials.
Senator Durbin. Does it give you pause to realize that in
the State of Georgia there is not a single place in the entire
city of Atlanta where a voter can buy an ID card; that the ID
cards that are being offered to voters cost $20 for a 5-year
card, $35 for 10 years; that the cards are only sold in 58
locations in a State with 159 counties; that the Secretary of
State Kathy Cox has said the vast majority of fraud complaints
in Georgia involve absentee ballots, which are unaffected by
the new law; and Ms. Cox goes on to say she is unaware of a
single documented case in recent years of fraud through
impersonization of a voter at the polls? Does that give you any
pause in considering whether the Civil Rights Division of the
United States Department of Justice should have approved and
precleared this law?
Mr. Kim. Senator Durbin, all of the considerations that you
raise should be factors in the analysis, I agree. My
understanding is, again, having been briefed upon this for the
purposes of this hearing, that there were other considerations
as well, not only intensive factual analysis but facts which
included that there was a waiver of fees permitted for people
who could establish indigency; that there would be mobile
stations allowed and brought into places like the city of
Atlanta to distribute these identification cards.
Again, the issue is a legal one and a factual one, and that
is one of retrogression.
Senator Durbin. Yes, it is true, citizens can swear they
are indigent and be exempt from the fee, but it is also true
that many are reluctant to swear to it because they risk a
criminal penalty.
I think that I don't understand the thinking of Mr. Tanner.
Are you familiar with Mr. John Tanner, who was involved in
this?
Mr. Kim. He is a distinguished 30-year veteran of the Civil
Rights Division, sir. Yes, I am very familiar with him.
Senator Durbin. Do you believe he made a good-faith effort
to listen to the arguments against preclearance made by civil
rights groups?
Mr. Kim. Senator, I know John Tanner, not as well as I hope
to. I believe he is an accomplished professional, dedicated
career servant, and I believe that all of the people in the
Civil Rights Division act in good faith, until and unless I am
presented with evidence to dispute that.
Senator Durbin. I don't know Mr. Tanner so I can't reflect
on his career or what he has done. This decision is troubling,
to put a new obstacle in the path of voters, one that costs
them money, that recalls those horrid days of our past with the
poll tax and obstacles thrown in the paths primarily of the
poor, the elderly, and minority populations, for a reason which
is not apparent to anyone. There is no voter fraud involved
here, according to their own Secretary of State. It is an
obstacle primarily to the poor, minorities, and the elderly,
which I think we all know--well, I won't get into that.
Let me just say this, Mr. Kim. I am troubled about another
aspect of the Civil Rights Division voting rights enforcement.
The Bush administration has not brought a single voting rights
lawsuit alleging racial discrimination against African
Americans. I find this disturbing. Even more troubling is the
fact that earlier this year the Justice Department filed its
first case ever under the Voting Rights Act alleging
discrimination in voting against white voters. The case was
brought against a county in Mississippi, a State with, as we
might know, a long history in this field.
How do you explain the fact that this administration has
filed lawsuits under Section 2 of the Voting Rights Act on
behalf of whites but not African Americans?
Mr. Kim. Senator, certainly the Voting Rights Act and the
laws against discrimination protect all American. I am often
put in the position, when I was a prosecutor, of putting on
witnesses who happen to have criminal culpability themselves
and often getting the reaction of some that would say, Why
would you use those people as witnesses? And my answer, as many
people who have served as prosecutors would be, was, ``I take
my witnesses where I find them, and if I can substantiate what
they say, then I would certainly believe that they are credible
witnesses, and that's for a jury to decide.''
Senator Durbin. I think it is----
Mr. Kim. The point, Senator, is simply that I have not
supervised the Voting Rights Section, but my understanding is
we look for cases, we look for facts to support legal theories,
and we bring those cases where we find them. And I pledge to do
that across the board.
Senator Durbin. Well, I hope you will, because I think
taking your witnesses where you find them is one thing, but it
all depends on where you are looking.
Mr. Kim. Senator, I pledge to look across the board.
Senator Durbin. Thank you.
I might also add that the same appears to be true in the
employment discrimination context. The Bush administration's
Civil Rights Division has not filed a single pattern or
practice employment discrimination case on behalf of African
Americans. By contrast, your division has filed several cases
on behalf of white people claiming to be the victims of
employment discrimination.
Mr. Kim. Senator, again, I apologize. I am not as well
attuned with the facts of those sections, but I could certainly
supplement the record if necessary to talk about those cases,
because, again, I don't have as much information with regard to
those sections to say whether I could sit here and----
Senator Durbin. And I want to give you a chance to do just
that.
Mr. Kim. I appreciate that.
Senator Durbin. I hope you will. I will send you some
additional questions.
Mr. Kim. Thank you, Senator.
Senator Durbin. Thank you, Mr. Chairman.
Senator Cornyn. Thank you, Senator Durbin.
Since it appears there is continuing interest in some more
questions, let me turn to Ms. Wooldridge. Ms. Wooldridge, you
have been the Solicitor of the Department of the Interior since
2004, and in that capacity, you have been, in effect, the chief
legal officer of that Cabinet-level agency and responsible for
managing nearly 400 lawyers and 18 offices nationwide and
providing counsel to the Secretary on a number of substantive
legal issues. How would you compare and contrast your current
position with the one that you now stand nominated to fill?
Ms. Wooldridge. Senator, thank you for----
Senator Cornyn. I might ask, how do you think that has
prepared you, if, in fact, it has, for your new job?
Ms. Wooldridge. Well, Senator, thank you for the question.
I think in some ways in my own head--and I probably shouldn't
say it publicly, but I think of the job to which I am being
nominated as sort of my current job on steroids in that we have
a great deal of the caseload that is within the Department of
Justice ENRD is the Interior caseload. We have similar
missions. But I would speak specifically to my job and tell you
that--and I appreciated the question about the goals that Mr.
Bradbury would have in coming into his office, because the
goals coming into the Solicitor's job turned out to not be the
goals that I needed to pay most attention to once I got there,
and that is that we did have 18 offices, we have about between
350 and 375 lawyers. We also have no calendaring system, no
case matter tracking systems, no recordkeeping systems, no way
for the Solicitor to track the advice that is given in one part
of the country for consistency with another part of the
country.
So when I came in, my mission immediately fell to actually
trying to manage the office and give people the resources and
the tools that they need to have a fully functioning
professional legal office. And I think we have made a great
number of strides in that direction.
If that is similar to the job I am going to, I am hopeful
that that is not the case, because it is very difficult for our
lawyers to be able to--we weren't even hooked up to the
Internet so they couldn't sit and do legal research at their
desks, that sort of thing. So I am hopeful that those won't be
the kinds of cases, though I am fully capable of spending my
time in the management area.
My goals, if you will, for moving into the new job seem
sort of corny, but, in fact, what I really hope that when I
leave--sort of a hindsight test, that I have made sure that the
resources are there for the attorneys to do the job they need
to do, that the morale is good amongst the career staff, that I
have a reputation for fairness and for listening, the courage
to make hard decisions, and that I have fulfilled my obligation
to the laws and the Constitution.
Senator Cornyn. Thank you very much. That is all the
questions I have at this time.
Senator Kohl, do you have any followup questions?
Senator Kohl. Thank you, Mr. Chairman.
Mr. Barnett, I would like to turn to the issue of media
consolidation. Some believe that there is nothing special about
mergers and acquisitions in the media marketplace and that they
should be treated much like any other merger. For example,
former Antitrust Division Chief Charles James said at his
confirmation hearing in 2001 that the only thing that mattered
in reviewing a media merger to him was the ``economic
consequences of the transaction.''
Now, I don't agree with that. I believe that mergers in the
media are different because they affect competition in the
marketplace of ideas which are so central to our democracy. In
the words of the great Justice Holmes, ``The best test of truth
is the power of thought to get itself accepted in competition
of the market.''
I believe that diversity in ownership is essential to
ensuring that such competing views are heard. Therefore, I
believe that we must give mergers in the media special and more
exacting scrutiny than when we review mergers in other
industries which do not affect the free flow of information.
I am interested in your opinion, Mr. Barnett. Is the
conventional view of antitrust review of media mergers which
are focused solely on economic factors, such as ad rates,
correct in your opinion? Or do you believe that the Justice
Department should consider a media merger's impact on diversity
of news and information and not limit analysis to a merger's
likely effect on advertising rates? What is your point of view?
Mr. Barnett. Well, Senator, I completely agree with you
that a healthy and robust marketplace of ideas is exceptionally
important in our Republic, and I am a strong believer in those
First Amendment values.
With respect to mergers, we have to approach it under the
laws that have been enacted by Congress, as interpreted by the
courts, and I believe that typically leads us to trying to
preserve a multitude of participants in the marketplace. And I
would have hoped that there would be a correlation between
having multiple participants with a diversity of views. I can't
necessarily guarantee that different owners will have a
particular viewpoint. But what I can tell you is I agree with
the fundamental value and goal, and that I will apply the
antitrust laws to the best of my ability to maintain a range of
ownership as required by the antitrust laws.
Senator Kohl. All right. One other question. I believe that
vigorous antitrust enforcement is essential to ensuring that
competition flourishes in our economy and consumers reap the
benefits in lower prices and highest quality.
In the first couple of years of the Bush administration,
when the Antitrust Division was headed by Charles James, I and
others became concerned about the diminished antitrust
enforcement activity at the Antitrust Division. Statistics
showed alarming declines in both the Division's civil, non-
merger, and criminal enforcement during that period.
More recently, your immediate predecessor, Hugh Pate, was
in my judgment a committed and highly talented Antitrust
Division head who I believe restored the Division's proud
tradition of aggressive antitrust enforcement.
How would you describe yourself, Mr. Barnett, in terms of
your antitrust enforcement philosophy? Is there any change in
approach or philosophy of antitrust enforcement we can expect
from that followed by your immediate predecessor, Hugh Pate,
should you be confirmed as head of the Antitrust Division?
Would you say that you compare philosophically more closely to
Hugh Pate or more closely to Charles James, and in what
respect?
Mr. Barnett. Well, thank you, Senator. I have to say that
one of the many happy aspects of my joining the Division last
year was the opportunity to work with Hugh Pate. He is an
extraordinarily talented individual, and in my own view, I
would do well to try and follow in his footsteps. I believe
that he has had the right enforcement priorities. He placed a
strong emphasis on anti-cartel enforcement, and indeed, in the
last fiscal year, we had one of our best years in terms of over
$300 million in fines and individuals being put in jail for
engaging in price-fixing and other cartel activity.
That would continue to be, if confirmed, my top enforcement
priority. I would continue also to focus on merger enforcement
and on non-merger enforcement, and I agree with you the last
several years I think the Division has brought a number of non-
merger cases, and that is an area that we would continue to
pursue.
So the short answer to your question is I agree with Hugh
Pate's philosophy and will, I believe, if confirmed, work to
carry that philosophy forward.
Senator Kohl. I appreciate your answer, Mr. Barnett, and I
thank you, Mr. Chairman.
Senator Cornyn. Thank you, Senator Kohl.
Senator Kennedy?
Senator Kennedy. Thank you, Mr. Chairman. Just a final few
questions.
Mr. Barnett, in the pharmaceutical area, we have seen the
increasing concentration of brand names and increasing
concentration of generic companies and increasing costs, rising
a good deal higher than the rate of inflation. Is this the
Antitrust Division's interest? Or should the Federal Trade
Commission ought to be concerned about this?
Mr. Barnett. Well, Senator, I think, as you know, there is
technically concurrent jurisdiction, but as a matter of
historical practice, the Federal Trade Commission has taken the
lead in enforcing civil enforcement in the pharmaceutical
industry.
Senator Kennedy. OK. We might be working with you as well
as we are looking at this avian flu, the health committees are,
and trying to get more rapid response, trying to get companies
together to try and deal with this and try and look at it in
terms of also antitrust and what we might have to do on this.
This might be an area that you give some thought to. I don't
know whether you have got--I have got limited time here, but
this is something that I think down the line--I don't know
whether you have given any kind of thought to what might be
permissible and what might not be permissible in terms of
having companies being able to get together to pool resources
to advance research in terms of vaccines or antiviral kinds of
products.
Mr. Barnett. Thank you, Senator. I will be brief because I
know your time is short. We are active on a range of health
care-related issues beyond pharmaceuticals. With respect to
avian flu and that issue, I have given that some thought
recently, and it is my belief that there is no antitrust
impediment to creating the kinds of programs that would be
necessary to prepare the country to defend itself against a flu
pandemic. The antitrust laws are flexible enough to address
that, and that is certainly the approach that we would take.
Senator Kennedy. That is interesting, because when we had
the initial bioterrorism bill, we had provisions in there for
certain kinds of exemptions, and actually those provisions were
struck because of concerns of the Antitrust Division. But that
was some time ago.
Let me come to Ms. Wooldridge. I am interested in your
Department, how you juggle the protections of Indian rights,
for example, Indian water rights versus all the other kinds of
priorities that you have in representing the Federal
Government. What are the kinds of instructions you give to U.S.
Attorneys when you have a conflict in terms of land and water
and fowl and other kinds--the whole range. I have not prepared
a great deal, but it is an area I have been interested in
because it always appeared to me for many years that the Native
Americans usually ended up on the short end in terms of the
protections, water rights, mineral rights, other kinds of
factors. Just in your own experience, what can you tell us that
might be encouraging to Native Americans about your service?
Ms. Wooldridge. Well, thank you, Senator, for the question.
I think I get the gist of it, so let me tell you what my
experience has been.
Since being with the Department in 2001, I have been the
Secretary's counselor for Indian water rights as well as the
other jobs that I have been undertaking. And both the
Department of Justice, the Environment and Natural Resources
Division, and the Department of the Interior, particularly as
it is the trustee for Native Americans, works pretty
aggressively to try to promote economic development and self-
determination in how we handle lawsuits that are--this may be
getting too technical, but it is the general stream
adjudications to establish water rights, particularly in our
Western U.S. And the Department of Justice represents the
tribes in those cases, in bringing those to establish those
rights. The tribes often are willing or have a desire to see
those rights work for them, not just as establish water rights
but to enable them to actually turn the value of that right
into an ability to pursue other economic interests.
So it is something that I have dealt with for the last four
and a half years, and I think we have a very good record of
actually getting to some of those settlements. We had a very
large settlement of almost the entire State of Idaho in
developing the Nez Perce rights and Gila River rights in
Arizona. We are making substantial progress in new Mexico,
although we kind of have fits and starts in that.
So we have some 18 negotiating teams out there trying to
develop those rights and to defend and enforce and establish
those rights for those tribes.
Senator Kennedy. Good. Well, thank you very much. It is
enormously important and it has not always been given the kind
of priority that it should have.
Mr. Chairman, thank you very much.
Senator Cornyn. Thank you, Senator Kennedy.
Without objection, we will put into the record a letter
from Senator Corzine supporting the nomination of Wan Kim.
Senator Corzine could not be here today because he had to be in
New Jersey.
We will also place in the record letters of support for Mr.
Kim from the Fraternal Order of Police, the National Asian
Pacific Bar Association, and the National Asian Pacific Legal
Consortium.
We will also make part of the record Senator Warner's
statement on behalf of Mr. Barnett, without objection.
Ladies and gentlemen, on behalf of the Judiciary Committee,
let me thank you for your appearance here today.
We will leave the record open until 5 p.m. next Thursday,
October 13th, for members to ask questions in writing. So be
looking for those, and as fast as you can get them back, the
more quickly we can mark up these nominations and hopefully get
your nominations to the floor and get you confirmed.
So, with that, thank you very much for being here, and this
hearing is adjourned.
[Whereupon, at 4 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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