Senate Hearing, 111TH Congress - Confirmation Hearings On Federal Appointments

S. HRG. 111695, Pt.
CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
APRIL 29, MAY 12, JUNE 24, 2009
Serial No. J1114

PART 2
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CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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S. HRG. 111695, Pt. 2
CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
APRIL 29, MAY 12, JUNE 24, 2009
Serial No. J1114

PART 2
Printed for the use of the Committee on the Judiciary
(
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON
62198 PDF
2010
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PATRICK J. LEAHY, Vermont, Chairman

HERB KOHL, Wisconsin
JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California
ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin
CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York
JON KYL, Arizona
RICHARD J. DURBIN, Illinois
LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland
JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island
TOM COBURN, Oklahoma
RON WYDEN, Oregon
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
BRUCE A. COHEN, Chief Counsel and Staff Director
MATT MINER, Republican Chief Counsel
(II)
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CONTENTS
WEDNESDAY, APRIL 29, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland .............
prepared statement ..........................................................................................
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared
statement ..............................................................................................................
1
408
8
465
PRESENTERS
Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland presenting Andre M. Davis, Nominee to be Circuit Judge for the Fourth
Circuit and Thomas E. Perez, Nominee to be Assistant Attorney General,
Civil Rights Division, U.S. Department of Justice ............................................
Sarbanes, Hon. Paul S., a former U.S. Senator from the State of Maryland
presenting Andre M. Davis, Nominee to be Circuit Judge for the Fourth
Circuit ...................................................................................................................
4
7
STATEMENT OF THE NOMINEES

Davis, Andre M., Nominee to be Circuit Judge for the Fourth Circuit ...............
Questionnaire ....................................................................................................
Hamilton, David F., Nominee to be Circuit Judge for the Seventh Circuit ........
Questionnaire ....................................................................................................
Perez, Thomas E., Nominee to be Assistant Attorney General, Civil Rights
Division, U.S. Department of Justice .................................................................
Questionnaire ....................................................................................................
9
10
84
85
183
186
QUESTIONS AND ANSWERS

Responses of Andre M. Davis to questions submitted by Senators Coburn,
Cornyn, Durbin, Graham, Grassley, Hatch and Sessions .................................
Responses of David F. Hamilton to questions submitted by Senators Coburn,
Cornyn, Graham, Grassley, Hatch and Sessions ...............................................
Responses of Thomas E. Perez to questions submitted by Senators Coburn,
Cornyn, Hatch and Sessions ...............................................................................
338
362
382
SUBMISSIONS FOR THE RECORD

American Association of People with Disabilities, Andrew Imparato, President
and CEO, Robert Bernstein, Executive Director, Judge David L. Bazelon
Center for Mental Health Law, Eric R. Hargis, President and CEO, Epilepsy Foundation, Kelly Buckland, Executive Director, National Council
on Independent Living, Washington, DC, joint letter .......................................
Americans United for Life, Charmaine Yoset, President and CEO, Washington, DC, letter .................................................................................................
Anti-Defamation League, Glen S. Levy, National Chairman and Abraham
H. Foxman, National Director, New York, New York, letter ...........................
Asian American Justice Center, Karen K. Narasaki, President and Executive
Director, Washington, D.C., letter ......................................................................
Board of Directors, Collective Banking Group, Inc, Reverend Kerry A. Hill,
President, Forestville, Maryland, letter .............................................................
397
401
403
405
407
(III)
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Camahan, Robin, Missouri Secretary of State, and Trey Grayson, Secretary

of State, Commonwealth of Kentucky, Jefferson City, Missouri, joint letter ..
Patrick Lynch, Rhode Island Attorney General, Alicia G. Limtiaco, Guam
Attorney General, Tom Miller, Iowa Attorney General, Jim Hood, Mississippi Attorney General, Richard Cordray, Ohio Attorney General, Richard Blumenthal, Connecticut Attorney General, Mark J. Bennett, Hawaii
Attorney General, James D. Buddy Caldwell, Louisiana Attorney General,
and Gary King, New Mexico Attorney General, joint letter .............................
Chief Law Enforcement Officers, State Attorneys General, Terry Goddard,
Attorney General of Arizona, Tom Miller, Martha Coakley, Jon Bruning,
Mark Shurtleff, Rob McKenna, William H. Sorrel, Washington, D.C., joint
letter ......................................................................................................................
Congressional Asian Pacific American Caucus, Michael M. Honda, Chair,
Washington, D.C., letter ......................................................................................
Congressional Hispanic Caucus, Nydia Velazquez, Chair, Charles A. Gonzalez, First Vice Chair, Ruben Hinojosa, Second Vice Chair, John Salazar,
Whip, Washington, D.C., joint letter ..................................................................
Cummings, Elijah, a Representatives in Congress from the State of Maryland,
letter ......................................................................................................................
Denis, Howard A., Chevy Chase, Maryland, letter ...............................................
Department of Justice, Washington, D.C:
Assistant Attorneys General, Civil Rights, John R. Dunne, Deval Patrick,
J. Stanley Pottinger, Bill Lann Lee, Stephen J. Pollak, and James
P. Turner, joint letter ...................................................................................
former Assistant Attorney General, Civil Rights, Ralph F. Boyd, Jr.,
and Wan J. Kim, joint letter ........................................................................
Durenberger, Dave, former Senator from the State of Minnesota, Chair, National Institute of Health Policy, Minneapolis, Minnesota, letter ....................
Estepp, M.H. Jim, President & CEO, Greater Prince Georges Roundtable
Business, Bowie, Maryland, letter ......................................................................
Family Research Council, Edwin Meese, former Attorney General, David
McIntosh, former U.S. Representative from Indiana, Tony Perkins, President of the Family Research Council, T.K. Cribb, former Counselor to
the Attorney General, Alfred S. Regnery, publisher of the American Spectator, Becky Norton Dunlop, President of the Council for National Policy,
joint letter .............................................................................................................
Former Law Clerks and Interns, joint letter .........................................................
Freeman, Betty M., AAFP Insurance, Kansas City, Missouri, letter ..................
Gordon, Alexander, IV, Alexander Gordon, IV., Attorney at Law, Easton
Maryland, letter ...................................................................................................
Gordon, Earl, National Representative of the Nationalist Wing of the Republican Party (NWGPO), Olney, Maryland, letter ................................................
Gorelick, Jamie S., Wilmer Hale, Washington, D.C., letter .................................
Hafner, M. Gayler, Towson, Maryland, letter .......................................................
Harrison, Iona C., Maryland Association of Realtors, Annapolis, Maryland,
letter ......................................................................................................................
Hispanic National Bar Association, Ramona E. Romero, National President,
Alexandra Castillo, Executive Endorsements Committee, Washington, D.C.,
letter ......................................................................................................................
Hollen, Chris Van, a Representatives in Congress from the State of Maryland,
letter ......................................................................................................................
Howard, Katherine Kelly, President, MSBA, Baltimore, Maryland, letter ........
Hoyer, Steny H., a Representatives in Congress from the State of Maryland,
letter ......................................................................................................................
Indianapolis Bar Association, Appelate Practice Section, Indianapolis, Indiana, joint letter .....................................................................................................
Jackson, Larry A., President Emeritus, Lander University, Greenwood, South
Carolina, letter .....................................................................................................
Kane, John M., President and CEO, Elkridge, Maryland, letter ........................
Kennedy, Hon. Edward M. a U.S. Senator from the State of Massachusetts,
letter ......................................................................................................................
Kight, Raymond M., Montgomery County Sheriff, Montgomery County Sheriff, letter ................................................................................................................
Kirwan, William, Chancellor, University System of Maryland, Adelphi, Maryland, letter ............................................................................................................
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Leadership Conference on Civil Rights, ADA Watch, Alliance for Justice,

AAUW, AFLCIO, Americans for Democratic Action, Asian American Justice Center, Bazelon Center, Feminist Majority, Human Rights Campaign,
Lawyers Committee for Civil Rights Under Law, NAACP Legal Defense
Fund, National Abortion Federation, National Asian Pacific American Bar
Association, NAACP, National Association of Consumer Advocates, NCDR,
national Council of Jewish Women, NCLR, national education Association,
National Fair Housing Alliance, National Health law Program, national
Partnership for Women & Families, National Womens Law Center, People
for the American Way, The Brennan center for Justice at New York University School of Law, Washington, D.C., joint letter ............................................
League of Dominican American Elected Officials, New York, New York, letter
Lee, Barbara, a Representatives in Congress from the State of California,
letter ......................................................................................................................
Leggett, Isiah, County Executive, Montgomery County, Rockville, Maryland,
letter ......................................................................................................................
Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Bill Lann Lee, Attorneys
at Law, Oakland, California, letter ....................................................................
Manger, J. Thomas, Chief of Police, Montgomery County, Department of
Police, Rockville, Maryland, letter ......................................................................
Martinez, Reynaldo R., Councilman, Haledon, New Jersey, letter .....................
Maryland Hispanic Chamber of Commerce, Y. Maria Welch, Chair, and Ricardo Martinez, Immediate Past Chair, Linthicum, Maryland, letter ............
Maryland Bankers Association, Murphy, Kathleen M., President and CEO,
Annapolis, Maryland, letter ................................................................................
McCarthy, John J., States Attorney, Rockville, Maryland, letter .......................
McCartney, Kevin R., Senior Vice President, Government Relations, Washington, D.C., letter ...............................................................................................
McCulloch, Champe C., President, Maryland AGC, Lutherville, Maryland,
letter ......................................................................................................................
Menzies, R. Michael S., President, Easton Bank and Trust, Easton Maryland,
letter ......................................................................................................................
Milgram, Anne, Attorney General, State of New Jersey, Department of Law
and Public Safety, Trenton, New Jersey, letter .................................................
Miller, Thomas V. Mike, Jr., President of the Senate and Michael E. Busch,
Speaker of the House, Maryland General Assemble, State House, Annapolis, Maryland .......................................................................................................
Montgomery County Chamber of Commerce, Georgette Gigi Godwin, President and CEO, Rockville, Maryland, letter ........................................................
Murnaghan Fellow:
Current and former fellows, April 22, 2009, joint letter ...............................
Law Clerks, April 27, 2009, joint letter ..........................................................
NAACP, Maryland State, Elbridge G. James, Chair, Political Action, and
Legislative Advocate, Baltimore, MD, letter ......................................................
National Council of La Raza, Janet Murguia, President and CEO, Washington, D.C., letter ...............................................................................................
National Disability Advocacy Organizations, Robert Bernstein, Executive Director, Judge David L. Bazelon Center for Mental Health Law, Andrew
Imparato, President and CEO, American Association of People with Disabilities, John Lancaster, Executive Director, National Council on Independent
Living, and Jim Ward, President, ADA Watch/National Coalition for Disability Rights, joint letter ....................................................................................
National Fair Housing Alliance, Deidre Swesnik, Washington, D.C., letter ......
National Womens Law Center, Nancy Duff Campbell, Co-President, and
Marcia D. Greenberger, Co-President, Washington, D.C., joint letter ............
Nethercut, John, Executive Director, Public Justice Center, Baltimore, MD,
letter ......................................................................................................................
Norton, Anne Balcer, Director, Foreclosure Prevention, St. Ambrose Housing
Aid Center, Baltimore, Maryland, letter ............................................................
OCA, George C. Wu, National Executive Director, Washington, D.C., letter .....
ODonnell, Anthony J., Minority Leader, Maryland House of Delegates, Annapolis, Maryland, letter .....................................................................................
OMalley, Martin, Governor, State of Maryland, Annapolis, Maryland, letter ..
Paulsen, Erik, a Representatives in Congress from the State of Minnesota,
letter ......................................................................................................................
Peck, Robert A., Managing Director, Jones Lang LaSalle, Washington, D.C.,
letter ......................................................................................................................
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People for the American Way, Marge Baker, Executive Vice President for
Policy and Program Planning, Washington, D.C., letters .................................
Division, U.S. Department of Justice, statement ..............................................
Perry, Roberta, March 31, 2009, letter ..................................................................
Peterson, Ronald R., President Johns Hopkins Health System, Baltimore,
Maryland and William G. Robertson, President & CEO, Adventist Health
Care, Rockville, Maryland, joint letter ...............................................................
Pray In Jesus Name Project, Colorado Springs, Colorado, joint letter ...............
Reno, Janet, former Attorney General, Washington, D.C., letter ........................
Republican National Lawyers Association, David Norcross, Chairman, Cleto
Mitchell, Co-Chair, and Charles H. Bell, Jr., President, Washington, DC,
joint letter .............................................................................................................
Republican, Staff Members, Senate Judiciary, Brian W. Jones, former Counsel, Rhett DeHart, former Counsel, Manus Cooney, former Chief Counsel
& Staff Director, Mark Disler, former Minority Staff Director and Majority
Chief Counsel, Washington, D.C., joint letter ....................................................
Rothenberg, Karen H., J.D., M.P.A., Dean, Marjorie Cook Professor of Law,
University of Maryland, Baltimore, Maryland, letter .......................................
Ruppersberger, Hon. C.A. Dutch, a Representatives in Congress from the
State of Maryland, letter .....................................................................................
Sachs, Stephen H., Baltimore, Maryland, letter ...................................................
Shalala, Donna E., Office of the President, University of Miami, Coral Gables,
Florida, letter .......................................................................................................
Sheridan, Terrence B., Superintendent, Maryland State Police, Pikesville,
Maryland, letter ...................................................................................................
Snyder, Kathleen T., CCE, President & CEO, Maryland Chamber of Commerce, Annapolis, Maryland, letter ....................................................................
State Law Enforcement Officers Labor Alliance, Jimmy Dulay, President,
Annapolis, Maryland, letter ................................................................................
Stop Predatory Gambling, Les Bernal, Executive Director, Washington, DC.,
joint letter .............................................................................................................
Sullivan, Louis W., M.S., President Emeritus, Morehouse School of Medicine,
Atlanta, Georgia, letter ........................................................................................
Talbot County Maryland Chamber of Commerce, Alan I. Silverstein, IOM,
President & CEO, Easton, Maryland, letter ......................................................
Young, Lauren, Severna, Maryland, letter ............................................................
Zellmer, Jeffrey, Legislative Director, Maryland Retailers Association, Annapolis, Maryland, letter ...........................................................................................
Zweig, Sally Franklin, Katz & Korin PC, Attorneys at Law, Indianapolis,
Indiana, letter .......................................................................................................
517
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TUESDAY, MAY 12, 2009

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama ..........................
577
580
PRESENTERS
Gillibrand, Hon. Kirsten, a U.S. Senator from the State of New York presenting Gerard E. Lynch, Nominee to be Circuit Judge for the Second
Circuit ...................................................................................................................
581

Lynch, Gerard E., Nominee to be Circuit Judge for the Second Circuit .............
Questionnaire ....................................................................................................
Smith, Mary L., Nominee to be Assistant Attorney General Tax Divisions .......
Questionnaire ....................................................................................................
584
585
670
671

Responses of Gerard E. Lynch to questions submitted by Senators Sessions,
Hatch, Coburn ......................................................................................................
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Responses of Mary L. Smith to questions submitted by Senators Sessions,

Hatch, Grassley, Coburn and Levin ...................................................................
716

All Indian Pueblo Council, Joe A. Garcia, Chairman, Albuquerque, New Mexico, letter ...............................................................................................................
Allen, W. Ron, Chairman and CEO, Jamestown SKlallam Tribe, Sequim,
Washington, letter ................................................................................................
Archer, Dennis W., Counselors at Law, Dickinson Wright PPLC, Detroit,
Michigan, letter ....................................................................................................
Boies, David, Boies, Schiller & Flexner LLP, Armonk, New York, letter ...........
Brown, Paulette, Partner & Chief Diversity Officer, Edwards Angell Palmer
& Dodge LLP, Madison, New Jersey, letter .......................................................
Carey, Jack, President, Illinois State Bar Association, Springfield, Illinois,
letter ......................................................................................................................
Cohen, Sheldon S., Esq., Tax Attorney, Washington, DC, letter .........................
Criminology & Criminal Justice Policy Coalition, Richard Rosenfeld, President, and Janice Joseph, President, Columbus, Ohio, joint letter ...................
Davis, Hon. Danny K., a Representatives in Congress from the State of
Illinois, letter ........................................................................................................
Foster, Hon. Bill, a Representatives in Congress from the State of Illinois,
letter ......................................................................................................................
Gist, Nancy E., Director, Bureau of Justice Assistance, Department of Justice,
Washington, DC, letter ........................................................................................
Greco, Michael S., K & L Gates LLP, Boston, Massachusetts, letter .................
Grey, Robert J., Jr., Hunton & Williams, Richmond, Virginia, letter .................
Hispanic National Bar Association, Ramona E. Romero, National President,
Hochman, Nathan J., Bingham McCutchen LLP, Santa Monica, California,
letter ......................................................................................................................
Lamm, Carolyn B., White & Case LLP, Washington, DC, letter ........................
Lauritsen, Janet L., Professor, University of Missouri, St. Louis, Missouri,
letter ......................................................................................................................
Leadership Conference on Civil Rights, Wade Henderson, President and CEO,
and Nancy Zirkin, Executive Vice President, Washington, DC, letter ............
Lee, Bill Lann, Attorney at Law, Lewis, Feinberg, lee, Renaker & Jackson,
P.C., Oakland, California, letter .........................................................................
Lytton, William B., Attorney, Dechert LLP, New York, New York, letter .........
Marcus, Daniel, Washington College of Law, American University, Washington, DC, letter .................................................................................................
Marshall, William P., Kenan Professor of Law, University of North Carolina,
Chapel Hill, North Carolina, letter ....................................................................
Madigan, Michael J., Orrick, Herrington & Sutcliffe LLP, Washington, DC,
letter ......................................................................................................................
Mikva, Hon. Abner, a former Representatives in Congress from the State
of Illinois, letter ....................................................................................................
National Asian Pacific American Bar Association, Andrew T. Hahn, Sr., President, and Tina Matsuoka, Executive Director, Washington, DC, letter ..........
National Association of Women Lawyers, Lisa Horowitz, President, Chicago,
Illinois, letter ........................................................................................................
National Bar Association, Rodney G. Moore, President, Atlanta, Georgia, letter ..........................................................................................................................
National Congress of American Indian, Jefferson Keel, President, Washington, DC, letter .................................................................................................
National Congress of American Indian, Jacqueline (Johnson) Pata, Executive
Director, Washington, DC, letter ........................................................................
National Native American Bar Association, Washington, DC:
Heather Dawn Thompson, President, April 27, 2009, letter ........................
Lael Echohawk, President, October 27, 2009, letter .....................................
National Womens Law Center, Nancy Duff Campbell, Co-President and
Marcia D. Greenberger, Co-President, Washington, DC, letter .......................
Native American Rights Fund, Lael Echohawk, President, Washington, DC,
letter ......................................................................................................................
Nolan, Beth, Vice President, George Washington University, Washington,
DC, letter ..............................................................................................................
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Olson, Theodore B., Lawyer, Gibson, Dunn & Crutcher LLP, Washington,
DC, letter ..............................................................................................................
Paterson, Brian, President, United South and Eastern Tribes, Inc., Nashville,
Tennessee, letter ..................................................................................................
Robinson, James K., Cadwalader, Wickersham & Taft LLP, Washington, DC,
letter ......................................................................................................................
Rush, Bobby L., a Representatives in Congress from the State of Illinois,
letter ......................................................................................................................
Wells, H. Thomas, Jr., Attorney at Law, Maynard Cooper & Gale PC, Birmingham, Alabama, letter ...................................................................................
Winston, Judith A., Consultant, Federal Education Law and Policy, Department of Education, Washington, DC, letter .......................................................
Womens Bar Association, Jennifer Maree, President, Washington, DC, letter .
Work, Charles R., Attorney, McDermott Will & Emery, Washington, DC,
letter ......................................................................................................................
Wright, E. Kenneth, Jr., President, The Chicago Bar Association, Chicago,
Illinois, letter ........................................................................................................
793
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WEDNESDAY, JUNE 24, 2009

Feinstein, Hon. Dianne, a U.S. Senator from the State of California .................
Kaufman, Hon. Edward E., a U.S. Senator from the State of Delaware ............
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama ..........................
809
810
945

Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship and Immigration Services, Department of Homeland Security ........................................
Questionnaire ....................................................................................................
McLellan, Thomas, Nominee to be Deputy Director, Office of National Drug
Control Policy; ......................................................................................................
Questionnaire ....................................................................................................
Schroeder, Christopher, Nominee to be Assistant Attorney General, Office
of Legal Policy, Department of Justice ...............................................................
Questionnaire ....................................................................................................
866
868
811
812
893
894

Responses of Alejandro Mayorkas to questions submitted by Senators Leahy
and Grassley .........................................................................................................
Responses of Thomas McLellan to questions submitted by Senators Coburn,
Grassley and Sessions .........................................................................................
Responses of Christopher H. Schroeder to questions submitted by Senators
Sessions and Coburn ............................................................................................
954
963
981

American Academy of Child & Adolescent Psychiatry, Robert L. Hendren,
D.O., President, Washington, DC, letter ............................................................
American Psychological Association, Norman B. Anderson, Chief Executive
Officer, Washington, DC, letter ..........................................................................
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American Psychological Association, Geoffrey K. Mumford, Associate Eecutive

Director for Government Relations Science Directorate, on behalf of the
following: Alcohol Policies Project; American Academy of Addiction Psychiatry; American Academy of Child and Adolescent Psychiatry; American
Osteopathic Academy of Addiction Medicine; American Psychological Association; American Society of Addiction Medicine; American Sociological Association; Association for Behavioral Health and Wellness; Association for
Medical Education and Research in Substance Abuse; Association for Psychological Science; Betty Ford Center; Bradford Health Services; Center
for Integrated Behavioral Health Policy; College on Problems of Drug Dependence; Community Anti-Drug Coalitions of America; Consortium of Social Science Associations; Drug Strategies; Entertainment Industries Council, Inc.; Faces and Voices of Recovery; Federation of Associations in Behavioral and Brain Sciences; Friends of the National Institute on Alcohol
Abuse and Alcoholism; Friends of the National Institute on Drug Abuse;
Friends Research Institute, Inc.; Hazelden Foundation; Hepatitis Foundation International; International Nurses Society on Addictions; Legal Action
Center; Mental Health and Substance Abuse Corporations of Massachusetts, Inc.; NAADAC, The Association for Addiction Professionals; National
Association for Children of Alcoholics; National Association for Childrens
Behavioral Health; National Association of Community Health Centers;
National Association of Drug Court Professionals; National Association of
State Alcohol and Drug Abuse Directors; National Center on Addiction
and Substance Abuse at Columbia University; National Council for Community Behavioral Healthcare; National Council on Alcoholism and Drug Dependence, Inc.; national families in Action; Operation PAR; Partnership
for a Drug-Free America; Physicians and Lawyers for National Drug Policy;
Research Society on Alcoholism; State Associations of Addicition Services
Therapeutic Communities of America, joint letter ............................................
Baca, Leroy D., Sheriff, County of Los Angeles, Monterey Park, California,
letter ......................................................................................................................
Bonner, Robert, Lawyer, Gibson, Dunn & Crutcher LLP, Los Angeles, California, letter ..........................................................................................................
Bratton, William J., Chief of Police and Sergio G. Diaz, Deputy Chief
Comanding Officer, Los Angeles Police Department, Los Angeles, California, joint letter .................................................................................................
Community Anti-Drug Coalitions of America (CADCA), Arthur T. Dean,
Chairman and CEO, and Sue Thau, Public Policy Consultant, Alexandria,
Virginia, joint letter .............................................................................................
Cooley, Steve, District Attorney, Los Angeles county, Los Angeles, California,
letter ......................................................................................................................
Culvahouse, Arthur B., Jr., Chair, OMelveny & Myers LLP, Washington,
DC, letter ..............................................................................................................
Department of Justice, Eleanor D. Acheson, former Assistant Attorney General; Walter E. Dellinger III, former Assistant Attorney General; Jamis
S. Corelick, former Deputy Attorney General; Randolph D. Moss, former
Assistant Attorney General; Beth Nolan, former Deputy Attorney General;
H. Jefferson Powell, former Deputy Attorney General; Teresa Wynn
Roseborough, former Deputy Attorney General; Lois J. Schiffer, former
Assistant Attorney General; howard M. Shapiro, former General Counsel;
Richard L. Shiffrin, former Deputy Attorney General; Seth P. Waxman,
former Solicitor General, joint letter ..................................................................
DeSarno, James V., Jr., Assistant Director, Federal Bureau of Investigation,
Los Angeles, Calirornia, letter ............................................................................
Federal Law Enforcement Officers Association, J. Adler, National President,
Lewisberry, Pennsylvania, letter ........................................................................
Gascon, George, Chief of Police, Mesa Police Department, Mesa, Arizona,
letter ......................................................................................................................
Heaps, Melody M., President, TASC, Chicago, Illinois, letter .............................
Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law
School, Cambridge, Massachusetts, letter .........................................................
Iden, Ronald L., Senior Vice President, Chief Security Officer, Walt Disney
Company, Burbank, California, letter, (Duplicate letter to Senator Leahy
is being retained in the Committee files) ...........................................................
Kerr, David H. President and CEO, Integrity Inc., Newark, New Jersey,
letter ......................................................................................................................
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Kushner, Jeffrey N., Statewide Drug Court Administrator, Supreme Court

of Montana, Helena, Montana, letter .................................................................
Leonhart, Michele M., Acting Administrator, Department of Justice, Washington, DC, letter .................................................................................................
Levi, David F., Dean, Duke University School of Law, Durham, North Carolina, letter .............................................................................................................
Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship and Immigration Services, Department of Homeland Security, statement .....................
McCaffrey, Barry R., former Director, National Drug Control Policy, letter ......
Control Policy, statement ....................................................................................
National Association of Drug Court Professionals, West Huddleston, Chief
Executive Officer, Alexandria, Virginia, letter ..................................................
National Association of State Alcohol and Drug Abuse Directors, Inc., Robert
I.L. Morrison, Interim Executive Director, Washington, DC, letter ................
National Families in Action, Sue, Rusche, President and CEO, Atlanta, Georgia, letter ...............................................................................................................
National Fraternal Order of Police, Chuck Canterbury, National President,
OKeeffe, Charles, Professor Epidemiology and Community Health, VCU
School of Medicine, Richmond, Virginia, letter .................................................
Partnership for a Drug-Free America, Pasierb, Stephen J., President and
CEO, New York, New York, letter ......................................................................
Starr, Kenneth W., Duane and Kelly Roberts Dean and Professor of Law,
Pepperdine University, Malibu, California, letter .............................................
Taylor, Sushma D., chief Executive Office, Center Point, Inc., San Rafael,
California, letter ...................................................................................................
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ALPHABETICAL LIST OF NOMINEES

Davis, Andre M., Nominee to be Circuit Judge for the Fourth Circuit ...............
Hamilton, David F., Nominee to be Circuit Judge for the Seventh Circuit ........
Lynch, Gerard E., Nominee to be Circuit Judge for the Second Circuit .............
Mayorkas, Alejandro, Nominee to be Director of U.S. Citizenship and Immigration Services, Department of Homeland Security ........................................
Control Policy; ......................................................................................................
Division, U.S. Department of Justice .................................................................
Schroeder, Christopher, Nominee to be Assistant Attorney General, Office
of Legal Policy, Department of Justice ...............................................................
Smith, Mary L., Nominee to be Assistant Attorney General Tax Divisions, ......
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NOMINATION OF ANDRE M. DAVIS, OF MARYLAND, NOMINEE TO BE CIRCUIT JUDGE

FOR THE FOURTH CIRCUIT; THOMAS E.
PEREZ, OF MARYLAND, NOMINEE TO BE ASSISTANT
ATTORNEY
GENERAL,
CIVIL
RIGHTS DIVISION, U.S. DEPARTMENT OF
JUSTICE; AND DAVID F. HAMILTON, OF INDIANA, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SEVENTH CIRCUIT
WEDNESDAY, APRIL 29, 2009
U.S. SENATE,
JUDICIARY,
Washington, DC.
The Committee met, pursuant to notice, at 2 p.m., in room SD
226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin,
presiding.
Present: Senators Cardin, Feingold, Schumer, Durbin, Whitehouse, Kaufman, and Coburn.
COMMITTEE
ON THE
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S.

SENATOR FROM THE STATE OF MARYLAND
Senator CARDIN. The Senate Judiciary Committee will come to

order. Let me welcome everyone here today. I particularly want to
welcome our three nominees and their families and thank each of
them for their public service and their continued desire to serve the
public, and thank their families for the sacrifices that they make
in order that their spouses can serve in public life.
I want to thank Chairman Leahy for allowing me to chair the
hearing. It is my understanding that Senator Coburn will act as
the Ranking Member at todays hearing and that he is on his way
to the Committee and has told me through staff that we should get
started. So in order to keep to the schedule, not too clear as to
when the next votes will be on the floor of the Senate, we will start
todays hearing.
I just want first, to Judge Hamilton, I hope you will allow me,
with just a little bit of Maryland pride, talk about todays hearing.
We are very proud of the connection that our two nominees have
to the State of Maryland. Judge Andre Davis is well known in
Maryland. He is a graduate of the University of Maryland School
of Law that you will hear frequently mentioned today. He is a
former professor at the University of Maryland School of Law. Tom
(1)
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Perez is a former professor at the University of Maryland School
of Law. I am a graduate of the University of Maryland School of
Law. Senator Mikulski is a graduate of the University of Maryland
at Baltimore School of Social work. And Senator Sarbanes in his
career in the U.S. Senate was a strong proponent of the University
of Maryland School of Law.
[Laughter.]
Senator CARDIN. So it is with pride that we have this hearing
today for three nominees, two for positions on the circuit court of
appeals, and one to head up the Assistant Attorney General for the
Civil Rights Division, all three extremely important positions.
So I welcome David Hamilton, Judge Hamilton. I welcome Judge
Andre Davis and Tom Perez, and I look forward to this hearing
today and look forward to your service in the positions that you
have been nominated to by President Obama.
Judge Andre Davis, if I were not chairing todays hearing, I
would be sitting next to my senior Senator, Senator Mikulski, in
introducing and supporting Judge Davis nomination for the court
of appeals. I think he is eminently qualified. His experienceand
let me just comment briefly about his experience for this position.
He is a former Assistant U.S. Attorney. He has the experience in
the judiciary which is unique. He started on the District Court of
Maryland, which is our judicial level that you have the most contact with the people, and he did an outstanding job on the district
court in our State, serving there for 3 years before moving on to
be a circuit court judge in Baltimore City. Again, that is our trial
court level. He served with great distinction and then was appointed to the United States District Court, where he has been a
judge since 1995.
He is praised by lawyers as being smart, evenhanded, fair, and
open-minded in the manner in which he conducts his court. He has
been rated by the ABA rating as well qualified. He has been a professor, as I pointed out before, and a mentor to many young attorneys. One in particular I would like to mention who is my counsel
to the Judiciary Committee, Bill Van Horne, clerked for Judge
Davis.
His roots are deep in Maryland, which is something that we find
a great advantage. This seat is a Maryland seat. Judge Davis was
born in Baltimore, raised in Baltimore, and lives in Baltimore. He
is active in the Maryland community in his entire life, and the history of this vacancy is Judge Francis Murnaghan, who died in August of 2000. The seat has been open. I think this is a most appropriate replacement. Judge Davis clerked for Judge Murnaghan.
Judge David Hamilton from Indiana, this is his second appearance before our Committee. He enjoyed himself so much last time,
he decided he wanted to come back. I regret that you have to come
back for a second hearing. At the first hearing, there were no Republican members to ask questions, and no Republican members
proposed written questions. And at the request of the Republicans,
we have scheduled a second day of hearings for Judge David Hamilton.
His record has already been placed in our record, his experience
and his resume. But let me just point out very briefly that it includes 14 years on the Federal district court, an ABA rating of well
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qualified. He is supported by both Indiana Senators, Senators Bayh
and Lugar. And just quoting very quickly from what is in the
record from Senator Lugar when he said, I do not view our Federal courts as the forum for resolving political disputes. That is
why I believe our confirmation decisions should not be based on
partisan considerations, much less on how we hope or predict a
given judicial nominee will vote on a particular issue of public moment or controversy. I have instead tried to evaluate judicial candidates on whether they have the requisite intelligence, experience,
character, and temperament that America deserves from their
judges and also on whether they indeed appreciate the vital, yet vitally limited role of the Federal judiciary faithful to interpret and
apply our laws rather than seeking to impose their own policy
views. I support Judge Hamiltons nomination and do so enthusiastically because he is superbly qualified under both sets of criteria.
I think that is quite a tribute by Senator Lugar, and it expressed
the desires that we would like to see in all the nominees that we
consider for the court.
Then, last, we will hear from Tom Perez to be Assistant Attorney
General for the Civil Rights Division. He is extremely well qualified. He currently serves as the Secretary of the Maryland Department of Labor, Licensing, and Regulation. He has broad experience
within the Department of Justice, having served there for 10 years,
beginning in the Civil Rights Division as a trial attorney in the
Criminal Section, and became the Deputy Assistant Attorney General for the Civil Rights Division. He was detailed during his career
to Senator Kennedys office where he was his principal adviser on
civil rights and criminal justice. In the Civil Rights Division, he
took on white supremacists, police brutality cases, corruption cases,
and many additional civil rights violations. He received the Attorney Generals Distinguished Service Award. He also served in the
United States Department of Health and Human Services as the
Director of the Office for Civil Rights and pursued medical privacy
issues at that time.
He is also well known because he has ventured into elected office, serving on the Montgomery County Council. Those of us who
are familiar with Maryland politics know that that is a real test
of someones ability to serve in Montgomery County on the County
Council.
He is a professor at the University of Maryland School of Law.
I particularly mention that a second time because he was a professor in the Clinical Law Program, a program that I helped start
as a result of a survey that was done about 20 years ago in Maryland showing a real void in training lawyers sensitive to public interest law, and Tom was one of the real leaders in that program,
training a generation of attorneys in our State who understand
their commitment to public service. He graduated from Brown University and Harvard Law School cum laude.
One last point about the Civil Rights Division. Elie Wiesel said,
Indifference, after all, is more dangerous than anger and hatred.
And the Civil Rights Division is not only our Nations moral conscience but it is charged with protecting all citizens against all
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forms of discrimination, whether it is in employment, education,
housing, voting rights, personal liberties, or hate crimes.
During President Bushs years, we saw an inactive Civil Rights
Division that did not take on the cases of importance. There was
very little enforcement authority used during the years. The voting
rights cases were not brought. Hate groups were not targeted. And
worse than that, the Department acted in a very partisan manner
on personnel decisions. The Inspector Generals report of January
13th of this year confirmed that by saying they considered political and ideological affiliations in personnel decisions, contrary to
Federal law.
Well, we look to the Assistant Attorney General for the Civil
Rights Division as someone who will restore that Division to its
historical role as the premier agency in our Government to protect
the rights of all of our citizens, and I have the greatest confidence
that Tom Perez will do that, and I am sure during this hearing we
will have a chance to ask some questions in that regard.
At this point I am going to turn first to the senior Senator from
Maryland, Senator Mikulski, and then it is always a pleasure to
have back Senator Paul Sarbanes. I am honored to be labeled
holding the Paul Sarbanes seat in the U.S. Senate.
Senator Mikulski.
PRESENTATION OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, AND THOMAS E.
PEREZ, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL,
CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, BY
HON. BARBARA MIKULSKI, A U.S. SENATOR FROM THE
STATE OF MARYLAND
Senator MIKULSKI. Thank you very much, Mr. Chairman. This is

indeed an exciting day for Maryland. We will be able to introduce
a distinguished jurist from Maryland being called to serve our
country, Judge Andre Davis, from our home town of Baltimore, who
has been nominated to the Fourth Circuit Court of Appeals, and
Secretary Tom Perez, who is playing a leadership role now in the
OMalley administration and we hope will be playing a leadership
role in the Obama administration to head up the Department of
Justices Civil Rights Division.
I really want to thank Senator Leahy for being so prompt in
scheduling these hearings and also to allowing us to testify today.
And it is great seeing you in the chair. You look like you belong
there.
Mr. Chairman, I also am sorry that Judge Hamilton has had to
come back for a second hearing, and I note that there are no other
people from the other party who are present at this hearing. I hope
we will not face that same situation where people do not come and
do not submit letters. So we would hope that the Davis hearing
would be able to be completed today.
Mr. Chairman, I take nominating judges very seriously, and I
have four basic criteria: one, they have to be people of absolute integrity; they have to have judicial competence, judicial temperament, a commitment to core constitutional principles, and a history
of civic engagement in Maryland. This is why we believe that
Judge Andre Davis will be an outstanding nominee. I am honored
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to introduce him today, and he has with him his family, who I am
sure he will introduce to the Committee. But he brings great integrity, a keen intellect, sound judicial experience and temperament.
He was also nominated for this position by President Clinton. At
the time of his nomination nearly a decade ago, he received the
highest of the ABA ratings, and today as he comes before you,
know that he has been an outstanding judge, and he brings a compelling personal story. He comes from a family of modest means.
His father was a teacher, his stepfather a steelworker. His mother
worked in food service. He grew up in our neighborhood of East
Baltimore, a community that valued hard work and a community
that valued service.
He earned a scholarship to Phillips Andover Academy and was
one of four African Americans in a school of 800 students. And
even as a young man, he knew that with opportunity comes responsibility. During those days at Andover, he volunteered at a juvenile
detention facility and mentored juveniles on Saturdays. He went on
to earn his B.A. at the University of Pennsylvania and graduated
from the University of Maryland Law School where he won the
Best Advocate Award in the moot court competition. The law faculty awarded him the prestigious Roger Howell Award at graduation. He then went on to work as a lawyer in public housing and
to also work in a variety of other positions.
Judge Davis is known for having outstanding competence. As I
said, when President Clinton nominated him, the ABA gave him
the highest rating. I note for the Chairman that I have here a letter from the Maryland Bar Association highly recommending Judge
Davis, and I ask unanimous consent that the Maryland Bar Association letter be included as part of the record.
Senator CARDIN. Without objection, it will be included in the
record.
Senator MIKULSKI. He has been known as a judge to handle difficult situations. He brings thoughtful temperament, is well respected among his colleagues, and has served as a distinguished
judge and also served as a prosecutor. He worked in the U.S. Attorneys Office and the Civil Rights Division. He also brings a history
of integrity, a strong work ethic, and a commitment to public service. He is an independent thinker and is dedicated to the rule of
law.
Well respected by his colleagues, he received the Benjamin L.
Cardin Award of Public Service, as you noted, named in your
honor, that was meant to be someone who would have an unassailable record in the community as a lawyer and a judge.
In addition to all of the things that would make him a great
judgeintellect, integrity, competencethere is that sense that a
judge has to be wise. And we believe that people are wise when
they are also civically engaged.
Judge Davis has repeatedly in his career been an outstanding
participant in the community, whether he has tutored juveniles,
whether he has been on the board of the Urban League, whether
he has worked as President of the Big Brothers and Sisters of Central Maryland serving on that board, also working with other organizations on prison re-entry, prison education reform, and also community entrepreneurship. He brings, I believe, every characteristic
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that a smart judge but a wise judge and an honest judge would do.
And I would hope that the Committee would expeditiously approve
him and move him to the Senate for deliberation.
Mr. Chairman, I would also like to take this opportunity to comment on another nominee before you, Secretary Tom Perez. I want
to also bring him to the Committees attention. He is President
Obamas nominee to head up the Civil Rights Division at the Justice Department.
I am the appropriator for the Justice Department working with
my colleague, Senator Shelby of Alabama. Working with Eric Holder, we hope to restore and reinvigorate the Justice Department by
not only having the right financial resources for them to do the job,
but the right people in the right place to make the right decisions
to restore the vitality of the Justice Department. Secretary Perez
has those characteristics. We believe that he will be able to do that.
As you know, the Civil Rights Division was created in 1957 and
has been a source of great pride in our country. And we want to
be able to have someone who brings, again, integrity, competence,
and a commitment to the mission of the agency.
For Tom Perez, his entire career has been in public service. He
has been a teacher. He has been a prosecutor. He has helped run
agencies. He has been a Cabinet member in the OMalley administration. He has brought skill; he has brought integrity; he has
brought experience in turning an agency around. And he has had
those qualities where he can deal with crisis management.
When he took over the Secretary of Labor job for Governor
OMalley, there were many unexpected things that came his way,
which he could handle. And then, working with the Maryland General Assembly, he was shown that he could work across party lines.
I sure hope we confirm Tom Perez to be that Assistant Secretary.
He is a graduate of Harvard Law School cum laude. He brought
extensive experience in civil rights. He actually was the chief at the
Division and worked also in the Civil Rights Office at HHS.
As a civil rights attorney for himself working at the Justice Department, he worked combating racial profiling and also being able
to deal with racially motivated hate crimes, like the despicable incident that occurred in Lubbock, Texas. Defendants went on killing
sprees directed at African Americans. They were brought to justice,
and part of that was because of the work of Tom Perez.
Integrity, he comes from a very hard-working immigrant family,
and he has also worked to prosecute public officials for corruption.
I believe that Tom Perez will bring energy, intellect, to the office
of civil rights, and I, too, urge the Judiciary Committee to move
this nomination so President Obama and Eric Holder have the
team they need at the Justice Department to enforce the laws that
we have on the books and to have this sense of justice and fairness
in our society.
Mr. Chairman, I would be happy to answer those questions, but
in a thumbnail, I think we are really proud of our nominees today,
and we would hope they would be given quick and expeditious approval.
Senator CARDIN. I thank Senator Mikulski.
Senator Sarbanes.
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PRESENTATION OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT, BY HON. PAUL S.
SARBANES, A FORMER U.S. SENATOR FROM THE STATE OF
MARYLAND
Senator SARBANES. Mr. Chairman, Senator Coburn, thank you

very much for giving me the courtesy of appearing before the Committee today.
I came primarily to talk about Judge Davis, and I will outline
why in just a moment. But I do want to take a moment first to note
with respect to Judge Hamilton that his uncle, his fathers brother,
was one of the most distinguished Members of the Congress of our
generation, Congressman Lee Hamilton, who rendered such extraordinary service here in the Congress and continues to render
extraordinary service as the head of the Woodrow Wilson Center.
So there is a great Hamilton tradition in American public service,
and I would be remiss not to note it at the outset.
I also want to concur and underscore the words of Senator Mikulski with respect to Tom Perez, who has been a dynamic force
in our State for a decent and fair society. He has done a magnificent job as the Secretary of the Department of Labor, Licensing,
and Regulation. He has had extensive experience in the Department of Justice over the course of his outstanding legal career.
And, Mr. Chairman, as you pointed out, he handled being a county
councilman in Montgomery County, no easy task, I might add, as
you noted.
With respect to Judge Davis, let me tell you how pleased I am
to come on his behalf here today. Senator Mikulski and I had the
privilege of recommending his nomination some years ago to this
Fourth Circuit seat. He was nominated, but the nomination came
late in the day of that administration, and it was not acted upon.
And we are pleased that he is back before the Committee here
today.
He reflects something that is important to us. Senator Mikulski
outlined it in the standards she set out. Maryland has had a great
tradition since the earlyeven before the early days of the Republicin colonial times, of having a very distinguished bar. Maryland
lawyers and judges have really ranked at the very top of the workings of our political system, and we are proud of that in our State,
and I think deservedly so.
Andre Davis is a Maryland product, simply put. He was born in
Baltimore, raised in Baltimore, went to the University of Pennsylvania, came back to the University of Maryland Law School, where
he had a very distinguished academic career. He clerked for Judge
Frank Kaufman in the United States District Court in Maryland,
and then the following year he clerked for Judge Francis
Murnaghan on the Court of Appeals for the Fourth Circuitthe
very position for which he is seeking confirmation here today.
He then worked for the Civil Rights Division of the U.S. Department of Justice. He joined the U.S. Attorneys Office in Baltimore.
He taught at the University of Maryland Law School and in 1987
was appointed to the district court in Baltimore. In 1990, he was
moved up to the circuit court, the trial court of general jurisdiction,
and served there until 1995, when he was appointed to the Federal
district court. He has been on the Federal bench nowit will be
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14 years this coming August. So this is a distinguished jurist, and
he has a prior record that people can evaluate, I think an outstanding record, at the State trial level and then at the Federal
trial level.
He has been very active in our community, something I think
which is of importance. Judges, I think, in addition to the outstanding performance we expect from them on the bench, I hope
would be people of stature in the community who would serve the
broader community in a leadership role. And Judge Davis has been
Director of the Baltimore Urban League; he has been President of
the Legal Aid Bureau, a trustee of Goucher College. He has been
a driving force in the Big Brothers and Big Sisters of Maryland. He
has been President and Vice President of the Executive Committee
of the Maryland Judicial Conference. He has been a member of the
board and President of the University of Maryland School of Law
Alumni Association, and highly, highly respected in his performance on the bench.
The Committee, I understand, has before it a letter that has
come from many, many of the former Murnaghan clerks, those men
and women who had the honor to clerk for Judge Murnaghan. I am
sensitive to that because Judge Murnaghan was a mentor of mine
in private practice many, many years ago, and a person of just extraordinary commitment and distinction.
In that letter, the Murnaghan clerks say, and I quote them,
Judge Murnaghan showed us how important it is for a wide range
of cases to be addressed by a person of powerful intellect, deep
learning, intuitive sympathy for all, and a steely commitment that
judges should unflinchingly see that fairness prevails. Andre Davis
will be unflinching in that duty. And they go on in their conclusion to say, Judge Davis life and career fully express the ideals
and sense of duty that Judge Murnaghan so magnificently embodied.
I could not agree with an evaluation more than I agree with this
one by all of these former Murnaghan clerks. Judge Davis will be
a superb addition to the Federal bench. I clerked in that court my
first year out of law school for Judge Morris Soper, and I have always been sensitive since to the necessity of having excellence on
the Federal bench. Judge Davis reflects that excellence, and I very
much hope the Committee will act positively and expeditiously on
his nomination.
Thank you very much.
Senator CARDIN. Senator Sarbanes, I want to thank you for being
here and speaking in regards to these nominees. I know it is very
helpful to our Committee, your observations, and we thank you for
returning. And, Senator Mikulski, it is always nice to have you in
our presence on the Judiciary Committee any time you want to.
Senator Coburn.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator COBURN. First of all, Senator Sarbanes, great to see you

again. Thank you.
Senator SARBANES. Thank you, Tom.
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Senator COBURN. Senator Mikulski, thank you both for your
input. I understand that you are taking both the Ranking and the
Chairmanship in my absence, and I apologize for being late. I also
would apologize for other members of our Caucus. I think I had
three hearings scheduled at 2 oclock as well, so I would announce
ahead of time I have another one at 3:00, so I will be leaving, and
will be submitting a large number of questions for the record.
I appreciate your recommendations. They mean a lot. I think one
of the things we do want to do is we want to make sure President
Obama gets qualified judges and the ones he selects. That is his
right. But I also think we ought to have the due diligence and the
time to explore the areas that we might want to know. And so we
will be expeditious but also thorough, and we will try to work with
the majority to make sure that happens.
Thank you for your testimony.
Senator CARDIN. Thank you, Senator Coburn.
Thank you.
Senator SARBANES. Thank you.
Senator CARDIN. We will now invite the three nominees to come
forward. And if Judge Davis and Judge Hamilton and Secretary
Perez will remain standing for one moment. Thank you. And if you
would raise your right hand and repeat after me. Do you affirm
that the testimony you are about to give before the Committee will
be the truth, the whole truth, and nothing but the truth?
Judge DAVIS. I do.
Mr. PEREZ. I do.
Judge HAMILTON. I do.
Senator CARDIN. Thank you. Please have a seat.
We will start with Judge Davis, and it is the tradition of our
Committee, we want to make sure that you maintain a good relationship at home, so if you would introduce your families, that
would be helpful, I think, to us and to you.
STATEMENT OF ANDRE M. DAVIS, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FOURTH CIRCUIT
Judge DAVIS. Thank you very much, Senator. Let me say, if I

might, how honored I am to have Senator Sarbanes here to speak
on my behalf, and I thank him for that. And, of course, I thank you
and Senator Mikulski so deeply for your support and for your long
service, each of you, on behalf of the people of Maryland. We are
all grateful for that.
I am joined today by a contingent of family and friends and acquaintances: my wife, Jessica Strauss; my son, Ahmed Davis; my
daughter, Loni Harris; my mom and my dad, brothers, sister,
brothers-in-law, sisters-in-law, and my larger family, my wonderful
family of clerks, who have served me so diligently and faithfully for
so many years, and I appreciate the presence of all of them.
Thank you, Mr. Chairman.
[The biographical information of Judge Davis follows:]
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Senator CARDIN. Thank you.
Judge Hamilton.
STATEMENT OF DAVID F. HAMILTON, NOMINEE TO BE
CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT
Judge HAMILTON. Thank you, Mr. Chairman. It is a pleasure to

be here again to answer any questions the Committee may have.
Not exactly the same group of people are here as those who were
here on April 1st, but my wife, Inge Van der Cruyss, and my father, Dick Hamilton, are here. I feel I should also introduce next
the two members of the contingent who have Baltimore connections
under the circumstances.
Senator CARDIN. That might be helpful to you.
[Laughter.]
Judge HAMILTON. My cousin, Doug Schmidt, and my long-time
friend, Judge Jim Bredar, who is a magistrate judge in the District
of Maryland; also Bill Schmidt, my uncle; his wife, Casiana
Schmidt; Sarah Schmidt; my cousin, Tracy Souza; my long-time
staff members, Jenny McGinnis and Chuck Bruess; law clerks Alison Chestovich, Allison Brown, Jordana Rubel, Jim Trilling, and
Kathleen DeLaney; and a long-time friend, Bill Moreau, are all
here today.
[The biographical information of Judge Hamilton follows:]
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Senator CARDIN. Secretary Perez, also, would you like to introduce your family, but if you would like to make an opening statement?
Mr. PEREZ. Thank you, Senator. First of all, I want to thank you,
Senator Mikulski, and Senator Sarbanes for all of your wonderful
leadership. We have the Cardin requirement. That is what it is
called at the University of Maryland School of Law. It is a public
service requirement. I cannot think of a better person after whom
to name that requirement. So thank you very much, Senator.
I did want to introduce my family. My wife, Anne Marie, is sitting with my 6-year-old son, Rafael, and he has a BlackBerry so
that he can play Brick Breaker in the event that we need some distraction.
[Laughter.]
Mr. PEREZ. Next to her is my 10-year-old daughter with the
freckles. That would be Susana. And next to her is my oldest
daughter, Amalia. The last time she was here was in my going
away party with Senator Kennedy when she was about a year and
a half old. And we have a wonderful photo of her and her teddy
bear and Senator Kennedy. So she was with wo teddy bears in that
particular context.
[Laughter.]
Mr. PEREZ. So thank you. Would you like me to deliver it now
or
Senator CARDIN. That would be fine.
Mr. PEREZ [continuing]. Either way? OK, great.
STATEMENT OF THOMAS E. PEREZ, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. PEREZ. Again, I am really grateful to this Committee. It is

wonderful to be back home. I remember vividly sitting in this Committee and having the privilege of doing so, and I really want to
thank the President and the Attorney General for giving me this
opportunity, if confirmed, to serve as the Assistant Attorney General for Civil Rights.
I know my parents, who inspired me to a career in public service,
are also here in spirit. My family story is the story of millions of
immigrants who have come to America seeking a better life. My
mother arrived in America in the 1930s from the Dominican Republic because my maternal grandfather was the Ambassador to
the United States. A few years later, he was declared non grata
after speaking out against a despicable regime that had been responsible for the murder of thousands of Haitians.
My father also had to flee the country, and he came to America
seeking a better life as well. He developed an immediate sense of
gratitude for the freedom that America had and gave, and while a
legal immigrant, he served with distinction in the U.S. Army as a
physician. Four of my uncles on my mothers side volunteered for
the U.S. Army in World War II because they were so appreciative
to this country for what this country gave them.
My father established a very strong bond with veterans, and
when he retired, he moved from Atlanta, Georgia, where he was
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stationed to Buffalo, New York, and served the rest of his career
as a physician at the VA hospital.
My parents taught their five kidsI am the youngest of five, the
cabooseto work hard, aim high, give back, and ensure that the
ladder is always down for the less fortunate. They valued education. All of my siblings became doctors, and I was the black
sheep in the family. I became the lawyer. And they have spent
much time working with the underserved.
Regrettably, my father worked so hard that he worked himself
to an early grave. He died when I was 12. And following his death,
times certainly became tougher. Finances became tighter. But my
mother was a rock, and we had a wonderful village in Buffalo that
was helping to raise me. And thanks to Pell grants, work-study
jobs, and other scholarships, I was able to follow that path to higher education that my parents set out for me.
My goal was always to become a civil rights lawyer because I
truly do believe that civil rights is the unfinished business of America. And my particular goal was to become a civil rights lawyer at
the U.S. Department of Justice because I always believed, and still
believe, that it is the most important civil rights law enforcement
agency in the United States.
I had the opportunity to serve the Department in a number of
capacities. I started as a law clerk in 1986 under Attorney General
Ed Meese. I entered the Department in 1989 and served under Attorneys General Thornburgh and Barr and later under Attorney
General Reno. I had the privilege of serving on the hiring committee in 1992, 1993, and 1994, Republican and Democratic administrations, and it was truly an honor. I had the privilege of serving
as a first-line supervisor in the Criminal Section.
I traveled the country. My first travel was to Mobile, Alabama,
where we were treated with great dignity by then-U.S. Attorney
and now Senator Jeff Sessions, the first trial that I participated in,
and he was a wonderfully welcoming person, a wonderfully welcoming U.S. Attorney, and I am very grateful for that work.
I have profound respect for this Department, and I have profound respect for this Division. I take the mission statement very
seriously: to ensure the fair and impartial administration of justice.
And it is that love I have for the Division which was why I read
with great concern the report from the Inspector General, because,
quite frankly, the Civil Rights Division that was depicted in that
report bore little resemblance to the Civil Rights Division where I
served with distinction under Republican and Democratic administrations.
I very much applaud Attorney General Mukaseys efforts to address the situation, and he made considerable progress. And I have
a deep, abiding optimism that we can restore the Civil Rights Division to its historic position. And if confirmed, one of my primary
goals will be to ensure that decisionmaking is de-politicized.
I will work hard to restore trust between career attorneys and
the political leadership. I have been both, and I respect the need
to ensure that effective communication between both. I will ensure
that hiring is guided plainly and simply by a search for the most
qualified candidates.
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Areas where we have made progress, where the Division has
made progress, if confirmed, I will work to ensure that that
progress continues, areas like human trafficking, areas like ensuring that people are protected in religious freedom, enforcing those
critical laws. But we must enforce all the laws within the jurisdiction of the Division. The Division must play an active role and can
play an active role in stemming the foreclosure crisis, ensuring that
the sacred right to vote is protected, and aggressively prosecuting
hate crimes.
Attorney General Holder told you during his confirmation hearing that he intends to make restoration of the Civil Rights Division
and its mission a top priority. And if confirmed, I am prepared to
lead that charge and to restore the reputation and effectiveness of
a Division that I still believe will be the Nations preeminent civil
rights enforcement agency.
Thank you for your courtesy, and I look forward to your questions.
[The biographical information of Mr. Perez follows:]
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Senator CARDIN. Let me again thank all three of you for being
here. We are going to use 10-minute rounds because of the importance of the positions that we are considering today. I promise that
I will be briefer than 10 minutes in my first round so that Senator
Coburn will have the full time available for the other commitment
that he has.
Mr. Perez, let me start with you. This is an appropriate day for
this hearing. Earlier today, I joined some of our colleagues before
the Supreme Court in oral argument on the Voting Rights Act and
its constitutional challenge. There was a really interesting exchange between the attorneys and the Justices as to the relevance
of the Voting Rights Act today in those covered States.
And then earlier today, the Judiciary Committee Subcommittee
on Crime held a hearing on the crack cocaine issue, which there
is, as I am sure you are aware, a hundred times more serious penalty for using crack rather than powder cocaine. And the racial
composition of those that are convicted on crack is much higher
among minorities, and they are serving much longer time. And
there is no evidence that we know of a difference between the substances.
I mention that because I think America is looking to the Justice
Department to root out those types of invidious discrimination that
still remains in our society. Some of it was not intentional when
it was developed, but it has caused results that diminish the credibility of our Government in the eyes of too many of our people.
I just would like to get a little further explanation from you as
to how you see things like the discrepancies between crack and
powder cocaine, or when you look at the statistics on the number
of minorities that are prosecuted in certain areas and how you
would intend dealing with those types of issue.
Mr. PEREZ. Thank you, Senator, for that question, and thank you
for your leadership on these issues. I know these have been issues
that you have thought about for a long time.
Assistant Attorney General Breuer was in front of the Committee
this morning talking about the crack and powder discrepancy, and
that is a critical
Senator CARDIN. Our Chairman just came in from that SubcommitteeSenator Durbin.
Mr. PEREZ. Good afternoon, Senator. And that is a critically important issue. And as a prosecutor, I always felt that it was critical
to be smart on crime and to strive for justice, and to strive for justice in a way that commands the respect of the community.
In a bipartisan fashion, I have observed that there is a recognition that we need to have a serious conversation about the crackpowder discrepancy, and if confirmed, I look forward to working
with this Committee, working with Assistant Attorney General
Breuer and Attorney General Holder to address that issue because,
again, we should strive not only to do justice but ensure that the
work that is done is respected in the communities. And that is
what the discrepancy is really calling to task.
Senator CARDIN. Well, voting rights, of course, are fundamental.
The Court was considering how they will rule on the Voting Rights
Act. I want to review with you some disturbing trends in recent
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elections here in the United States, including the 2006 election in
Maryland that I am vividly familiar with.
I am not sure we need new laws. I think the laws might be adequate. I joined then-Senator Obama in introducing a bill that was
passed by this Committeeit did not get beyond our Committee;
it did pass the House of Representativesto strengthen the laws
against fraudulent type of efforts to diminish minority voting. We
have seen efforts to get the wrong election day information to people in an effort to reduce minority participation. We have seen efforts made to intimidate voters not to show up at the polls. And
we look to the Federal Government, the Justice Department, as
providing the strength to fight those issues. Local governments are
not able or capable in many cases to deal with it.
Can you just share with this Committee your priority in looking
at these matters, seeing whether you have adequate tools, working
with this Committee and Congress if you need additional tools or
resources so that we protect the most valuable part of our democracy in that every person has the right and ability to participate
fully in electing their Government?
Mr. PEREZ. Senator, I completely agree with you that voting is
our most fundamental right. And when you look at the reauthorization of the Voting Rights Act in this Congress, that is one of the
first findings that is made in that area.
If confirmed, I would spend a considerable amount of time ensuring that we are adequatelythat the Division is adequately enforcing laws that are on the books. If confirmed, I would work hard in
the Section 2 context. Section 2 of the Voting Rights Act is the
bread and butter of the Voting Rights Act. It prohibits discrimination in the voting process, and it is a very powerful tool that can
be used to ensure that people have access to the ballot free from
discrimination.
Section 5, as you heard earlier this morning, is an equally important tool, and it is critical, as the next census approaches, to ensure
that there is both the human capital infrastructure, the IT, and a
plan in place when the next census is in place.
Similarly, there are other laws on the books, Section 7 of the Voting Rights Act which provides opportunities and requires that
States register people in the motor-voter context and in social service agencies, another critically important tool to enhance access to
voting.
And so there are, as you correctly point out, a lot of laws on the
books that can be used to ensure the right to vote, and I look forward, if confirmed, to enforcing those laws and also to continuing
the dialog with you on the issue of whether those laws are enough.
Senator CARDIN. I heard your statements on the politicization of
the Department, the Inspector Generals report, and you said what
I had hoped you would have said about how you will operate the
Division if you are confirmed. But I want to just emphasize the
point.
What is your attitude about philosophy or partisan politics as it
relates to the hiring and promotion of career attorneys or interns
or in any other way other than the political appointments in the
office? Obviously, there is a political consideration. But beyond the
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political appointments in the office, what role will partisan politics
play if you are confirmed to head up the Civil Rights Division?
Mr. PEREZ. None, Senator. The search for career hires will be
governed by a search for the most qualified candidates, plain and
simple.
I do have other questions, but I am going to wait until the second
round, and I will call on Senator Coburn.
Senator COBURN. Thank you.
Judge Hamilton, thank you for coming back. I am sorry we have
not been able to meet or discuss in person. I hope to get that accomplished. I am going to jump around a little bit, and then I have
a series of about 20 questions for each of you that I will be submitting for the record.
Mr. Perez, you have written a lot about health care, and you
have connected it to a civil right. Is there a statute that you can
call on? Or in your role in the Civil Rights Division, how will that
play and how will you use that, what you have said in the past,
and also statutes that will guide you in terms of health care and
civil rights?
Mr. PEREZ. Senator, I come from a medical family, and so I have
great respect for doctors. The law that is currently on the books
that implicates the medical profession is Title VI of the Civil Rights
Act of 1964, which says that anyone receiving Federal financial assistance cannot discriminate on the basis of race, color, or national
origin.
And so in the context of the Civil Rights Division, that is the
principal statutory tool that would be used. Most hospitals are receiving Federal financial assistance, so they have the antidiscrimination obligation.
Senator COBURN. Do you have background or statistics that
would say we have a significant problem? Our big problem is access. It is not denial of access. It is the economic access that is
can you bring to light areas where you think we have seen discrimination in health care?
Mr. PEREZ. Well, when I had the privilege, Senator, of serving at
the Director of the Office for Civil Rights at the Department of
Health and Human Services, we had a number of cases involving
discrimination. There was a hospital that was segregating their
maternity ward by race. There was another case involving providers who were along the Mexican border with the United States
that had their security personnel dressing up in uniforms that
closely resembled the Border Patrol so that they would discourage
immigrants from using the facilities.
And so while I think we have made a lot of progress in combating discrimination, we had all too many case examples that
demonstrated that there are pockets where discrimination persists.
Senator COBURN. Judge Davis, I tend to agree with President
Obamas statement about empathy being required at the court, but
I also know there is a second goal, and that is, both stare decisis
as well as the law. What role do you believe empathy should play
in a judges consideration of a case?
Judge DAVIS. Senator, I believe that empathy is one of those
qualities that a life fully lived in the law and out of the law will
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come to be a part of a good and wise judge. I think it is a quality
that permits a judge not to decide a case on the basis of the identity of the party before him or her. That would not be appropriate.
But an empathetic judge, I think, Senator, is one who appreciates
the burdens, the challenges that the litigants before him or her has
met and to appreciate the importance of a fair hearing and a fair
and impartial judgment in every case.
Senator COBURN. You had by your record several reversals by the
Fourth Circuit on evidentiary matters in criminal cases. Taken together, what is your response to that? And what have you learned?
Judge DAVIS. Senator, in my nearly-14-year career as a Federal
trial judge, on a few occasions I have, applying the law as announced by the Supreme Court and the Fourth Circuit, ruled in a
way that suppressed evidence at the request of a criminal defendant. In the vast majority of those instances where I have granted
a motion to suppress, the Government did not appeal. However, as
you point out, there have been a few instances in which the Government did appeal and in which the Fourth Circuit reversed my
judgment.
I have in every instance taken the law as it exists, done my best
to apply the law to the facts that I found before me, and render
a decision that, in my judgment, was fair and impartial.
The Fourth Circuit has reversed those decisions on occasion and
has done so in several instances and published opinions which
would indicate, as I believe to be the case, that a number of those
cases presented novel or issues of first impression, and the Fourth
Circuit published the opinion so as to give guidance to judges, trial
judges, going forward. But my judgment, Senator, is that my thinking on criminal law issues of procedure and substantive law very
much are in the mainstream of thinking among Federal judges.
Senator COBURN. Did they get it wrong, any of them, in your
opinion?
Judge DAVIS. Well, there was one casenot in the criminal contextin which the Fourth Circuit reversed me, and the Supreme
Court reversed the Fourth Circuit.
Senator COBURN. That is pretty good evidence, isnt it?
[Laughter.]
Judge DAVIS. Well, as the great Justice said, you know, the Supreme Court is not final because they are infallible. They are infallible because they are final.
Senator COBURN. Right.
[Laughter.]
Judge DAVIS. Reasonable judges can disagree about some of
these issues, as you well know, Senator. Just last week, indeed, the
Supreme Court in a 54 decision in the Fourth Amendment context
greatly narrowed, if it did not overrule, a longstanding 1981 precedent relating to automobile searches. So these issues continue to
evolve.
Senator COBURN. In your opinion, is there any role for international law in the interpretation and judging of the U.S. Constitution and our statutes?
Judge DAVIS. I have not seen any evidence at the circuit court
level, Senator, that any court has seen fit or found it desirable to
do so. Of course, the Supreme Court Justices themselves have some
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disagreement about the proper role. It seems to me in those few
cases in which the Supreme Court has alluded to international decisions, it has been done in a very restrained way that simply
pointed out that others around the world do or do not disagree with
their interpretation of our Constitution. But I see no evidence that
any judge in this country has ever believed or does believe that referring to international principles is the way to decide constitutional decisions in our system.
Senator COBURN. So you would have no trouble committing to
this Committee that you will not use international law as you interpret our Constitution and our statutes?
Judge DAVIS. Well, certainly, Senator, to the extent that I am
bound by the Supreme Courts pronouncementsand I would be if
I am lucky enough to be confirmed by this Committee and by the
Senateto the extent the Supreme Court has indicated in a particular context that international principles played a role in their
decision of an issue, then it seems to me a circuit court judge could
take that into account in applying that principle.
Senator COBURN. Yes, in terms of utilization of stare decisis.
Judge DAVIS. Yes, exactly.
Senator COBURN. All right. Judge Hamilton, do you have any
comments on that in terms of the utilization of international law?
You need to turn your microphone on, if you would. It is OK. I forget all the time.
Judge HAMILTON. I forgot again. In my courtroom, it is always
on.
Senator COBURN. Well, that can be dangerous at times.
[Laughter.]
Judge HAMILTON. Well, I will not tell those stories if I can avoid
doing that.
I think, first of all, it is clear to all American judges that I know
that when we are applying the American Constitution and interpreting it, it is the United States Constitution that we are interpreting. I do not have any misunderstanding about that myself. I
do not believe anyone else does.
There are situations that we have seen in which the Supreme
Court or other courts, in struggling with a difficult question, will
look to guidance from wise commentators from many placesprofessors from law schools, experts in a particular field who have
written about it. And in recent years, the Supreme Court has started to look to some courts from other countries where some members of the Court may believe that there is some wisdom to be
gained.
As long as it is confined to something similar to citing law professors articles, I do not have a problem with that. But I think all
of us remember that the Constitution, after all, is the product of
a rebellion against a foreign power, and it is an American document that we are interpreting and applying.
Senator COBURN. OK. So outside of scholarly pursuit, the guidance will be the Constitution and the statutes.
Judge HAMILTON. That is my view, yes.
Senator COBURN. Thank you.
In a speech in 2003, you quoted another judge who once said that
part of a judges job is to write a series of footnotes to the Constitu-
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tion. You added to that that they do that every year in cases large
and small. Would you kind of explain that to me, your meaning behind the statement?
Judge HAMILTON. Certainly. The speech you are referring to was
in honor of my late colleague, S. Hugh Dillin, whose seat I was
nominated to take back in 1994. And to give you an idea, I attended schools as a boy that Judge Dillin had desegregated, and he
drew great criticism for doing that back in the 1960s. The way he
described our work is the daily or weekly application of the provisions and principles of our Constitution to new cases and new situations as they arise. And at least to me, the concept of the footnote
implies what we are trying to do is not something new, but work
out the details of how those principles apply to new situations.
Senator COBURN. All right. Thank you very much. I would say
Lee Hamilton is one of my heroes. I have great admiration and respect for him. I served with him for 6 years in the House, and he
is a stellar individual.
I will submit questions to all three nominees, and I would ask
for certain that the record be left open because the other members
of our Caucus would like to do that as well.
Senator CARDIN. And it will be. The record will be left open for
questions, and we would urge the nominees to try to answer those
questions as promptly as possible so that the Committee can consider the nominations in a timely way. So the record will remain
open.
I have letters of support for Mr. Perezs nomination from many
elected officials, including Senator Kennedy, Governor OMalley,
Majority Leader Steny Hoyer, many members of the State Assembly, including the Republican leader, and local government officials.
Without objection, I would ask that these letters be made part of
our record. Hearing no objection, so ordered.
Senator Kaufman.
Senator KAUFMAN. Yes, Judge Davis, how do you view your role
different on the circuit court of appeals than on the district court?
Judge DAVIS. I am sorry, Senator. I
Senator KAUFMAN. How are you going to see your role as different on the circuit court of appeals as opposed to the district
court?
Judge DAVIS. I see. As you can guess, Senator, I am sure, I greatly enjoyed my time as a trial judge, being in touch with lawyers,
litigants, and particularly working with juries. And if I am lucky
enough to be confirmed, I surely will miss that aspect of the work.
But the role of the circuit judge, of course, is to select and apply
the correct standard of review, be it de novo, abuse of discretion,
or clearly erroneous, and examine the record of proceedings below
to ensure that the litigants received a fair and impartial judgment
that is correct according to law and within the bounds of the factual record that was presented to the trial judge, and to do so collaboratively and collegially with the two panel members on which,
as you know, circuit court judges sit as panels of three.
Senator KAUFMAN. Judge Hamilton.
Judge HAMILTON. Thank you, Senator Kaufman. Like Judge
Davis, I will miss trial work if I am confirmed for this position and
will miss the opportunity to work on a daily basis with juries and
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with lawyers in trials and conferences. I look forward to the possibility, though, of engaging in some of the legal issues in more detail, perhaps with a little more time to engage in them on those
matters that are left less to the discretion of the individual trial
court and more to broader rules of law that will be applicable to
the whole circuit.
Senator KAUFMAN. Secretary Perez, what in your background
prepares you to be head of the Civil Rights Division?
Mr. PEREZ. Well, I have spent my entire career in civil rights,
Senator, and I worked almost 10 years in the Civil Rights Division,
starting as a summer clerk and working my way up to the Deputy
Assistant Attorney General for Civil Rights. I worked as a career
person, and I have worked as a political appointee, and I recognize
the critical importance of having that interaction between career
staff and political staff.
The job really requires legal acumen. It requires leadership. It
requires management. And I have had the privilege of working
with two organizations, leading those organizations, both of whom
had critical missions and both of whom had critical challenges.
They were underperforming, to be quite blunt. And you learn a lot
from those experiences about how to take an organization that is
not firing on all cylinders and leading it. And I learned to listen.
I learned to be inclusive. I learned that so many people on the front
lines are going to have great ideas. I often say to people, I have
not had an original idea in years, but I pride myself on being a
good listener. And I suspect that as we move back to the Division
that I recall with great fondness, I hope that I can apply those experiences, including, but not limited to, my DOJ experiences, to put
to bear.
Senator KAUFMAN. And what will your priorities be when you arrive, if confirmed?
Mr. PEREZ. Well, No. 1, as I have mentioned, would be de-politicizing the decisionmaking process, and that includes, again, the
hiring process and substantive decisionmaking, so that on Section
5 submissions, for instance, from various jurisdictions, I want to
make sure that we have the opinions of the career staff. I may not
agree with career recommendations all the time, but I guarantee
you I will listen to them.
I also in terms of priorities would work hard to find out what is
working. I think the work that has been done protecting religious
freedom is a criticala good example of work that has been done
well. The human trafficking work is work that has been done well
and should be continued.
But I would also make sure that we are enforcing all the laws
that are in the arsenal of enforcement of the Divisionvoting
rights, as I have discussed; having the Division play a role in foreclosure prevention, as I have done in the State of Maryland; and
the aggressive and evenhanded enforcement of hate crimes laws.
Senator KAUFMAN. I feel a little bit like Groundhog Day. This
morning, I did the nomination for Mr. de Baca to be nominee for
the Director of Office to Monitor and Combat Trafficking, and I
asked him how he was going to coordinate with you. I guess it is
only fair to ask you how you are going to coordinate with him.
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Mr. PEREZ. Well, in the realm of it is a small world, when I
served on the hiring committee in the early to mid-1990s, Lou de
Baca was one of the people that we hired.
Senator KAUFMAN. That is what he said.
Mr. PEREZ. And so I know Mr. de Baca very well and look forward to coordinating not only with him but with other agencies on
critical issues, whether it is HUD or Treasury on foreclosure, Department of Homeland Security, Department of State on the trafficking issues, Department of Education on education issues. So
many of the most vexing challenges are challenges that require
that cross-agency coordination.
Senator KAUFMAN. I just want to thank all three of you for agreeing to come and help us deal with the problems in the Federal Government, and I think it is really a tribute to the country that you
are willing to do this, and I just want to thank you for it.
Mr. PEREZ. Thank you.
Judge DAVIS. Thank you, Senator.
Judge HAMILTON. Thank you, Senator.
Senator CARDIN. Senator Feingold is here, so before I start my
second round, I will give Senator Feingold an opportunity.
Senator FEINGOLD. Thank you very much, Mr. Chairman. Welcome to all the witnesses and congratulations on your nominations.
Judge Davis, I would like to start with you. As I think you know,
I have a longstanding concern about Federal judges accepting expense-paid judicial education trips from groups funded by wealthy
contributors that freely admit their purpose is to influence judicial
decisionmaking. You went on a number of these trips, as I understand it, but also in the spring of 2004, you decided to accept an
offer to join the board of directors of one of the groups that provides
these trips, the so-called Foundation for Research on Economics
and the Environment, known as FREE. FREE promotes what it
calls free market environmentalism. It is well known for its opposition to many of the major environmental laws of our country,
and, not surprisingly, its financial support comes from major corporations and conservative foundations.
As I understand it, an ethics complaint was filed against you for
serving on FREEs board, and that led you to request an opinion
from the Committee on Codes of Conduct. The Codes of Conduct
Committee gave you its opinion on March 30, 2005, and you decided then to resign from the board. I want to thank you for providing that opinion and your letter requesting it to the Committee.
Let me ask you first about your letter to the Codes of Conduct
Committee requesting its opinion. You assert in the letter that you
do not see any difference between the ethical propriety of serving
on FREEs board and taking a trip funded by FREE. It seems pretty clear to me that joining the board of an organization like FREE
is actually a much more significant indication of your involvement
with the organization and poses in my mind very different ethical
questions.
Did you really not see the difference then, or do you see the difference now?
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Judge DAVIS. I absolutely see the difference now, Senator. I did
not see it back in the spring of 2004 when I was invited and agreed
to join the board.
Senator FEINGOLD. What is it that you understand to be the difference now?
Judge DAVIS. Well, I have the advisory committees opinion, the
committees opinion spelling out, as they point out, while the issue
is difficult for themthey debated it for over a monthultimately
they came down on the side, having examined, among other things,
the FREE website, that there was an appearance of impropriety in
a judges service on that board. And I immediately, as you point
out, took action to terminate my relationship as a board member.
Senator FEINGOLD. Thank you, Judge. You did not say much at
the time about your reasons for resigning, but in a June 2007
statement in a court proceeding, you asserted the committee had
found a tension between your service on FREEs board and one or
more of the canons of the Code of Conduct for United States judges.
But as I read the opinion, the committee very clearly said that
your service on the board violated the two specific canons. It says,
Your service on the FREE Board of Trustees violates Canon 5B
because there is no practical way for you to disassociate yourself
from the policies advanced by FREE, and your affiliation would
reasonably be seen as a personal advocacy of FREEs policy positions. And it said that your service on FREEs board runs afoul
of Canon 2A of the Code because it could create in reasonable and
informed minds a perception that your impartiality may be impaired, and it lends prestige to FREE and allows FREE to exploit
the prestige of the office.
There really was no wiggle room there at all, was there?
Judge DAVIS. I am not sure I understand the question, Senator.
Senator FEINGOLD. These are explicit statements of violating
these canons, so this opinion really left no wiggle room around
that. Is that correct?
Judge DAVIS. Oh, and that is exactly why I resigned, Senator.
The comment I think that you are quoting from on the record came
up in the context of a case in which an attorney sought my recusal
from that case, which was a long-running case over which I had
presided for many years, and he attempted to use, both before me
and before the Fourth Circuit upon appeal in a mandamus action,
the mere fact of my presence on the FREE board as a reason for
my recusal from that case. And in denying the recusal motion, I
simply alluded to, without having the opinion in front of me, trying
to give him as much of an explanation for the circumstances which
led to my resignation from the FREE board, I alluded toI used
the language that you just quoted. But I did not mean by that allusion on the record to capture the full flavor or weight of the Codes
of Conduct Committee advisory opinion. I agree with your characterization of it, and they specifically mentioned Canons 2 and 5 and
had no
Senator FEINGOLD. Obviously, then, Judge, you agree that the
committee was saying unequivocally that it was improper for Federal judges to serve on FREEs board.
Judge DAVIS. I believe that is exactly what they said, Senator,
although they did say that merely reading the canons themselves
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did not provide an answer to the question. They say that in the advisory opinion.
Senator FEINGOLD. OK. After reading the committees opinion, I
know you resigned from FREEs board, but did you discuss it with
or give a copy of it to FREE or any FREE board member?
Judge DAVIS. I did not.
Senator FEINGOLD. Who did you share it with?
Judge DAVIS. Then-Chief Judge Wilkins of the Fourth Circuit,
and you will recall, I think, the way this came up was the complaint was filed with the Fourth Circuit Judicial Council as a complaint of judicial misconduct. And in consultation with then-Chief
Judge Wilkins, he and I agreed that the appropriate way to approach the matter was not to treat it as a complaint of judicial misconduct. No one ever really believed or alleged that I was guilty of
misconduct. Rather, the question that was posed was a question of
interpretation of the canons and the Code of Judicial Conduct. And
Judge Wilkins and I then agreed that I would request of the Codes
of Conduct Committee an advisory opinion, and that is exactly
what I did.
And, of course, the advisory committee on its part pointed out
very carefully that it does not have jurisdiction over claims of judicial misconduct, but they accepted my request for an advisory opinion in respect to the application of the canons as it relatesor as
they relate to service on the board.
So it was something of a disconnect
Senator FEINGOLD. I take it at this point you were aware that
other Federal judges were similarly violating the Codes of Conduct
here.
Judge DAVIS. Well, when I made the request, Senator, I did not
believe I was violating the Code of Conduct.
Senator FEINGOLD. No, but once you got that letter, you were
aware that other judges were in the same status, right?
Judge DAVIS. I was aware that other judges were on the FREE
board.
Senator FEINGOLD. OK. Could you just explain why you took no
further action when you knew that there were continuing violations
of the Codes of Conduct by other Federal judges and are still taking place today?
Judge DAVIS. The understanding that I had, which has, frankly,
recently been enhanced, is that an advisory opinion issued by the
Codes of Conduct Committee goes to that judge at his or her request, and that there is an institutional, was my understanding, interest on the part of the Codes of Conduct Committee not to have
released advisory opinions requested by individual judges.
As you, I am sure, know, Senator, each Federal judge has an
independent obligationand Justice, I might say, has an independent obligation to attend to ethical norms and to take appropriate steps to ensure that his or her behavior and activities comport with those norms at all times. And that is what I did, and
when I got the advisory opinion back from the Codes of Conduct
Committee, I took immediate action to take care of my issue, and
I thought that that was the extent to which I had an obligation to
proceed.
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Senator FEINGOLD. Judge, this is not a favorite part of being a
Senator asking these kinds of questions, but I think you made a
genuine attempt to answer. I am very concerned about this practice, as I know you understand, of taking these trips and being involved in these kinds of boards. And I appreciate your answering
the questions.
Mr. Perez, congratulations on your
Senator CARDIN. Would the Senator yield? I am not going to take
it off your time. If I could just put into the record that paragraph
that Judge Davis referred to from the opinion, which readsand
I will put the whole letter in the record. We note that your inquiry
is a difficult one. It was debated at length by the Committee. We
understand that the advice we gave you today would not be obvious
from reviewing the canons and our previous advisory opinions. In
the past, the Committee often has assumed that the inquiring
judge is in the best position to evaluate the activities of a board
on which he or she serves and has deferred to the inquiring judges
determination about the propriety of service. However, in light of
the wealth of information about FREE that is now available to us
and to the public, we believe that we are in a position to provide
you with advice as you have requested. Thus, while we never before have advised judges about this issue and acknowledge that you
reasonably could have arrived at a different conclusion, after diligently reviewing the most relevant Code of Conduct material available to you, we have advised you now that your continued service
on the FREE board in the future is inconsistent with Canons 2 and
5 of the Code of Conduct.
I thank the Senator for yielding.
Senator FEINGOLD. And I ask that the entire letter be placed in
the record.
Senator CARDIN. The entire letter, yes.
Senator FEINGOLD. Thank you.
Mr. Perez, congratulations on your nomination. I have heard so
much about you. You seem extremely well qualified for this position. It is very important that the Civil Rights Division regain its
previous stature, and I wish you well in that. I want to ask you
just briefly about the issue of racial profiling.
I first introduced legislation to ban racial profiling in 2001, and
President Bush actually promised in his first address to Congress
to end racial profiling in America.
Do you agree that this is still a problem in this country? And will
you work with me on legislation to finally end it?
Mr. PEREZ. I do agree, Senator, that it is a problem. I spent a
good portion of my time as a Criminal Section lawyer down in Florida investigating racial profiling cases. I talked to many victims,
and I look forward to working with you and others who haveyou
have been a long-time leader in this issue, and I remember talking
about this with Michael OLeary back in the mid-1990s. So your
doggedness is much appreciated, and I look forward to working
with you.
Senator FEINGOLD. Including on legislation?
Mr. PEREZ. Including on legislation. If you have questions, I
would certainly be more than willing to be available to lend our insights.
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Senator FEINGOLD. Thank you, and thank you, Mr. Chairman.
Senator CARDIN. Thank you, Senator Feingold.
If I might, to both Judge Davis and Judge Hamilton, Secretary
Perezs work in pro bono is well known. His role at the University
of Maryland Law School is well known, and I am more than happy
to have Secretary Perez also respond to this.
I know from each of your records that you have been involved in
pro bono, so I know that. My question to you is that, as an individual, as an attorney, as a judge, and, if confirmed, as an appellate court judge, how do you see your role in advancing equal opportunity before our courts, particularly those who do not have the
resources to have the opportunities that others have in getting access to our judicial system? Judge Davis?
Judge DAVIS. Senator, I have throughout my professional career
had a deep belief in and commitment to the ideal of pro bono. I
think it is something that every lawyer and every judge who is
privileged to be a member of this great profession of ours has such
a responsibility. And I have worked diligently throughout my career to both increase opportunities for judges and lawyers to participate in pro bono activities and, more specifically, to ensure that
the underserved and our young people and community members at
large learn about the legal system, know their rights, and I have
done so on both an individual basis and as a part of institutions.
For example, just very quickly, our court, like, I am sure, most
Federal courts, makes available to pro se litigants form documents
which permit pro se litigants, when they cannot find a lawyer say
in an employment case or other kind of case, to come to the courthouse, pick up this form, which contains a series of check boxes
and some place for writing in facts. We make it as easy as possible
for these persons who have to represent themselves to come to the
court and seek justice.
Just last week, for another example, our court, under the extraordinary leadership of Magistrate Judge Garvey, for not the first
time put on what we call in the Federal system the Open Doors
Program, where high school students from around the Baltimore
region spent the morning, including lunch, at our courthouse, put
on a mock trial. I was privileged to preside over such a mock trial
put on by students who served as a jury from Merganthaler High
School right there in Baltimore.
And so these are just some of the activities that I, both in my
institutional capacity and in my individual capacity, reach out to
the community, young people, and pro se litigants to ensure that
they know about our criminal justice system, they know about our
civil justice system, and know that we are there for them even
when they cannot get a lawyer and that we value increasing their
knowledge about the justice system.
Senator CARDIN. Judge Hamilton.
Judge HAMILTON. Senator, when I talk with new lawyers or law
students, I try to encourage in every instance them to commit a
substantial amount of their time to pro bono work. That was something that was critical for me in my development as a new lawyer.
I try to suggest it is not only the right thing to do for the profession
and for the clients they serve, but there is also a self-interest in
doing so. It is a way for a young or a new lawyer to invest in his
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or her career in developing skills, having opportunities to serve clients in ways that they might not be able to with their paying work
that brings them along. I know that was critical for me in my development as a lawyer.
Like the District of Maryland, we also have programs in place to
assist pro se litigants. I have to say also at the same time, some
of the pro se litigation obviously is frivolous. It winds up taking a
good deal of time from the court. But it is also an important part
of our work to deal with all of those claims fairly and as expeditiously as we can.
We provide, for example, panels of lawyers who are available to
be contacted by pro se litigants who would like help with their
cases. We have to do that under Seventh Circuit case law, which
governs how we go about the business of recruiting counsel, when
we must, when we should recruit counsel for pro se litigants. So
consistent with the Seventh Circuit law on the subject, we do what
we can along those lines.
I also would just say briefly that I think that in my work both
as a judge and as chief judge with some administrative responsibilities, I have certainly tried to make sure that in our administrative
roles, in hiring new personnel and so on, that we are as much an
equal opportunity employer, supervisor, and dispute resolver as we
can be.
Mr. PEREZ. Senator, my wife of 20 years is a legal aid lawyer of
20 years in Maryland, and now she works at a place called the
Washington Legal Clinic for the Homeless. The only way they can
handle cases is by partnering with law firms to handle cases on a
pro bono matter.
When I first started at the Department of Justice, DOJ attorneys
were forbidden from taking pro bono cases. That rule has since
changed, and so some of her volunteer lawyers are currently lawyers who are coming from Government service, and if confirmed, I
would certainly work hard to ensure that we maximize opportunities for Government attorneys to continue to participate in these
critical projects.
Senator CARDIN. Well, as you know, one of the recommendations
of our committee in Maryland was not only to establish the clinical
programs in our law schools, but that every lawyerevery lawyershould do some pro bono, and that does not exclude Government service attorneys. We think everyone has an obligation to
particularly lawyers. We are charged with the legal system. We are
charged with making sure that people have access to our system,
and we can do a lot to help in that regard as individual practitioners. I just encourage you as leaders in the legal community to
use whatever opportunities you have to get that message across,
and I thank you, Secretary Perez, for your longstanding leadership
in this area.
I want to ask a question that Chairman Leahy always asks those
who are seeking to become judges, and that is, can you share with
us a moment during your career where you stood up for something
that was not popular, stood up for people who were disadvantaged,
whether it was against Government or big companies, that indi-
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cated your willingness to step forward in order to protect the rights
of individuals? Judge Davis, you seem anxious to go.
Judge DAVIS. Well, Senator, I would like to think that I brought
that kind of approach to my work as a judge. Frankly, one case
that might fit the mold of the question you have just asked is the
case involving attempts by disabled individuals to require the circuit court for Baltimore City to bring the court facilities up to minimum standards for those who are disabled. And I, through our
random assignment system, got that case. My good friend Judge
Robert Bell, Chief Judge of Maryland, was named as a defendant
in his official capacity, as were other judges on the court. And the
claim was one of Federal law, and it was, to be sure, somewhat
awkward to be sitting in such a case.
But, Senator, I did not hesitate, and the defendants in that case
were ably represented by members of the Attorney Generals Office
of the State of Maryland, and I, on the basis of the record that was
before the court, did not hesitate to enter a summary judgment in
favor of the plaintiffs, the disabled individuals who wished to force
the city of Baltimore and the court system in Maryland to take appropriate action, long overdue, to bring admittedly older structures
but structures that housed important governmental offices such as
courts into compliance with Federal law.
So I entered that judgment. It was a very collaborative process
between the plaintiffs and defendants in that case, and so that is
certainly one of my instances where I stood up to judges and the
local and State authorities to say Federal law requires this, these
individuals have every bit of right to have full access to these facilities and these programs as required by the Congress of the United
States, and you have got to do it. And I am happy to say that compliance, though it took a little while, was achieved and the building
was brought up to standards. And I am very proud of that.
Senator CARDIN. And how is your relationship with Judge Bell
these days?
[Laughter.]
Judge DAVIS. I got very warm wishes from him just recently,
Senator, and he wished me well.
Senator CARDIN. I was looking. I do not know if I saw a letter
from him or not.
[Laughter.]
Senator CARDIN. Judge Hamilton.
Judge HAMILTON. Well, as some members of the Committee may
be aware, a few of my cases have generated a fair amount of criticism and they have not been popular. When I worked in private
practice, I would say a lot of the pro bono work that I did fits that
description. I can think of, for example, a couple of cases back in
the mid-1980s as America was dealing with the first waves of the
AIDS epidemic, and there was a lot of fear, there was a lot of discrimination against people who tested positive.
I assisted a man, for example, a father who had been stripped
of his rights as a parent because he had tested positive for the HIV
virus. A State court had terminated his right as a parent of his
son. I assisted in the appeal that led to the restoration of those
rights.
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I assisted a young boy named Ryan White, who became well
known, when he was told he could not attend school after he had
gained the HIV virus through a transfusion. He was a hemophiliac.
He later passed away, but he was a courageous story and an inspiration to everybody who dealt with him.
Just about every other pro bono case that I handled dealt with,
in essence, the less powerful or less monied against more powerful
and wealthier interests, whether it was archaeological interests
against coal mining interests or opposing the State government in
trying to destroy a historic building.
And as I said, I think in my work as a district judge, I try not
to go out of my way to be unpopular. That is just not the way we
decide cases. Sometimes the right result turns out to be the popular result. Sometimes the right result is unpopular. You just go
with the right result.
Senator CARDIN. Well, I thank you. That is a very meaningful response, and we all do know about those causes. So you made a
huge difference. All of you have made huge differences in that regard, and we thank you for that.
The record of the Committee will remain openlet me get my
formal notices here. The hearing record will remain open for 1
week for additional statements and questions from Senators.
Again, we ask the witnesses to respond promptly to the questions
that are asked by members of the Committee. Without objection,
Chairman Leahys statement will be made a part of the record.
I want to once again thank our nominees not only for being here
and their responses to the questions that were asked, but their continued service in the public. All three of you have made incredible
contributions and are going to continue to do that, and it is a pleasure to have you before our Committee. Thank you very much.
Judge DAVIS. Thank you very much.
Mr. PEREZ. Thank you, Senator.
Judge HAMILTON. Thank you, Senator.
Senator CARDIN. The hearing is adjourned.
[Whereupon, at 3:30 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record follow.]
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NOMINATION OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT, AND MARY L. SMITH, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, TAX DIVISION, U.S. DEPARTMENT OF
JUSTICE
TUESDAY, MAY 12, 2009
U.S. SENATE,
JUDICIARY,
Washington, DC.
The Committee met, pursuant to notice, at 2:36 p.m., in room
SD226, Dirksen Senate Office Building, Hon. Charles E. Schumer,
presiding.
Present: Senators Schumer, Klobuchar, and Sessions.
COMMITTEE
ON THE
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S.

SENATOR FROM THE STATE OF NEW YORK
Senator SCHUMER. The hearing will come to order, and I want to

welcome Judge Lynch and Ms. Smith and your families as well who
I see here. You look like families, anyway, which just means you
are very nice looking and proud.
Anyway, first Judge Lynch. Judge Lynch, I could not be more
pleased to have a second opportunity to honor your hard work and
service to the law, all the more so because your story begins in
your hometown of Brooklyn, which is my hometown, too.
Judge Lynch, who currently sits as a U.S. District Judge in the
Southern District of New York, comes to us for confirmation to the
Second Circuit, much as he did in 2000 for his first confirmation,
with an unimpeachable record of moderation, consistency, intelligence, and dedication to exploring all facets of complex legal questions.
In his 9 years on the bench, he has issued nearly 800 opinions,
tried nearly 90 cases to verdict, and has been overturned by the
Second Circuit only 12 times. And one of those times, I might add,
the Second Circuit was in turn reversed by the United States Supreme Court.
There should not be any doubt that Judge Lynch is not an ideologue. His opinions and writings show moderation and thoughtfulness. He is pragmatic. His peers and those who practice before him
have found him to be both probing and courteousin sum, very judicial in his temperament.
(577)
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In response to questions before the Senate Judiciary Committee
in 2000, Judge Lynch said, A judge who comes to the bench
withand I would like my colleague to particularly hear these
linesthat is not you, Amy.
[Laughter.]
Senator KLOBUCHAR. Thank you very much for clarifying that for
the record.
Senator SCHUMER. A judge who comes to the bench with an
agenda or a set of social problems he or she would like to solve is
in the wrong business.
Senator SESSIONS. Amen.
Senator SCHUMER. Let the record show Senator Sessions noted
his assent to that sentiment.
I could not agree more, and I expect and hope that my colleagues
on the Committee feel the same way.
As I have said many times, my criteria for selecting good judges
are three: Excellence, legal excellence, no political hacks; moderationI do not like judges too far right, as Jeff knows, but I also
do not like judges too far left; and diversityI try to put as many
women and people of color on the bench as I can.
There is no question that Judge Lynch meets the standard of excellence. He was first in his classhe was first in both classes at
Columbia, college and law school. I hope he had a good time while
he was there. His opinions are scholarlyI mean, I figure if you
are first in your class for one, you deserve to have a good time at
the other. But he was first in his class bothand one that was
overturned by the Second Circuit was lauded by the panel as a
valiant effort by a conscientious district judge.
There is no question Judge Lynch is, in fact, a moderate. His impressively low reversal rate should give the lie to any argument he
is outside the legal mainstream. I might note here, too, that three
of those 12 reversals came in cases in which he had ruled for the
government and against plaintiffs who had alleged various forms
of government misconduct.
Now, the rap on Judge Lynch in 2000 among the 36 who voted
against him was that he would be an activist. The view arose
from an out-of-context outtake from two law review articles. I will
repeat now what I said then. In both of these articles, then-Professor Lynch expressed the moderate view that the Constitution
cannot, as a practical matter, remain frozen in the 18th century.
The Constitution should not be expanded, but it must be interpreted.
To illustrate my point about why Judge Lynch should be accepted as a paragon of moderation, I want to read two quotes.
First, Text is the definitive expression of what was legislated.
Second, A text should not be construed strictly and should not
be construed leniently. It should be construed reasonably to contain
all that it fairly means.
The second quote was written by Associate Justice Antonin
Scalia. The first quote, sounding almost the same, was from Judge
Lynch.
At the end of the day, we could revisit old arguments about
Judge Lynchs previous writings, but we do not have to. There is
no reason to take snippets of what he has written in the course of
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a long and august career and try to read them like a sidewalk psychic reads palms. Instead, let us look at his copious opinions and
rulings. He has been the definition of law-enforcing and justiceseeking. He has ruled for the State against prisoners, but he has
also ruled the State must protect due process rights of those it
seeks to detain. He has sentenced defendants convicted of horrible
crimes to life without parole. And he has also expressed concerns
when he thinks a sentence might be too long while imposing the
sentence in complete accordance with the law. He has issued complex and scholarly opinions in securities and antitrust cases.
We have covered excellence and moderation. Let me say a word
now about diversity. Judge Lynch obviously is not a nominee who
fits this bill. There is no way to get around that. But I want to note
another kind of diversity that I believe deserves mention. Before he
went on the bench, Judge Lynch sought out opportunities to be
more than a smart professor living in an ivory tower. He spent a
total of 5 years in the U.S. Attorneys Office in the Southern District of New York, as chief of the Appellate Section and chief of the
Criminal Division. He worked as counsel to a prominent law firm,
and he took on numerous pro bono cases. In short, he lived the life
of a real lawyer while teaching and writing. And driven by his own
conscience, he even registered for the draft during the Vietnam
War rather than seek a college deferment. That speaks lots. It
does. I salute you for that, Judge.
This is someone who has sought out a diversity of experiences
which he now brings to the table as a judge. I look forward to this
new chapter in Judge Lynchs service to our country.
I also look forward to Ms. Smiths continued service at the Department of Justice. Mary L. Smith is the Presidents nominee to
be Assistant Attorney General for the Tax Division at the Department of Justice.
Ms. Smith, you have an impressive and distinguished career, and
we are happy to welcome you back to public service. As you know,
the Bush administrations management of the Justice Department
was abysmal, in my opinion. I am particularly pleased to see a
nominee with your background, the professionalism and excellence
to help get DOJ back on its feet.
Although the Tax Division was not denuded by the previous administration the same way some of the other Divisions were, it remains vital that all members of the Justice Department leadership
be committed to the ideals that the Department of Justice has embodied for so much of its history. I am confident you will help the
President and the Attorney General in their mission to restore the
integrity and reputation of the Department.
With that, I yield to ourand I want to congratulate him publicly. Is it official yet?
Senator SESSIONS. Sort ofyes.
Senator SCHUMER. It is official. It was first sort of official, but
then became official. I want to congratulate Jeff Sessions on his ascension to be the Ranking Member of the Judiciary Committee. As
I have said publicly to the press, Jeff and I do not agree on a whole
lot of issues, but he is a straight shooter. He tells you what he
thinks, and you can sit down and come to agreements and compromises with him even when you are far apart on the issues. So
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I think he will be a proud addition as Ranking Minority to the Judiciary Committee.
And now I call on Senator Sessions for a statement.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Senator SESSIONS. Thank you. Mr. Chairman, it is great to be

with you, and I would like to welcome both our nominees today.
Judge Lynch, I really enjoyed our conversation yesterday. You
are a man of judgment and integrity and good brain power and insight, and I appreciated that opportunity.
I know Senator Schumer was a big defender of yours last time.
He had a lot of confidence in your ability. I made a speech that I
thought was pretty persuasive, and he followed me and almost convinced me after you did a good job with that debate. So I did vote
against you at that time based on
Senator SCHUMER. Not good enough, evidently.
[Laughter.]
Senator SESSIONS. And a number of other Senators did. But it is
a lifetime appointment that you are seeking to the Federal appellate court, and I think the Senates obligation is very real, and that
is to examine the nominee carefully, and it should not be taken
lightly.
The people of the country have only one opportunity to decide
whether an individual is worthy of this high office, and that is this
one, and so we have to fulfill our duty. And we will ask you to answer certain questions such as: As a nominee, do you understand
that your role as a judge is to follow the law, regardless of personal
feelings and preferences? Does he or she understand the role of
precedent? Can the nominee put aside political views which may be
appropriate as a legislator, executive, or even professor, but interpret that law as written? And will the nominee keep his or her
oath to uphold the Constitution first and foremost?
As to legal skill and personal integrity and ability to decide
cases, I think your record is good, and I certainly respect that.
In 2000, when you were first nominated to the district judgeship,
I expressed concern that you might harbor activist tendencies and
legislate from the bench. As a result, I think 35 members joined
me in opposing that confirmation. I still have some concerns on
your record while on the bench, especially when considered in conjunction with some of your written remarks in the past criticizing
the textualist approach to constitutional interpretation.
Some of your rulings and statements have reminded me of my
concerns 9 years ago about willingness to be bound by the law and
the Constitution. One of my concerns relates to Judge Lynchs handling of the Pabon-Curz case, where a defendant accused of distributing hundreds of images of graphic child pornography faced a possible 10-year minimum sentence. Judge Lynch did not approve of
this sentence, and he said so, but it was prescribed by the law. He
said, Pabon is a young and sympathetic defendant who faces a
draconian penalty for his offenses.
He then sought to inform the jury that the defendant faced a
mandatory 10-year sentence which would have enabled the jury to
nullify Congress policy judgment on the appropriate prison term
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for this kind of sentence and would be contrary to the Federal law
that the juries are not told about what the sentences will be. So
I am concerned that those feelings may have led you to go beyond
the normal legal requirements that a judge has.
I do not want to and I am not going to evaluate Judge Lynch,
however, on this one case. To his credit, he gave the prosecution
an opportunity openly to appeal the decision to the Second Circuit,
which did reverse his decision. But I am concerned about this case
because it does appear that feelings may have trumped the text of
the law and the will of Congress. Given the small number of cases
that the Supreme Court accepts for review each term, our appellate
courts are often the court of last resort for litigants.
So I come to this with an open mind and would cite, in addition
to Senator Schumers compliments, a very nice letter I received
today from Mary Jo White, former United States Attorney in Manhattan, and she is strongly of the view that you are an excellent
nominee and would be an excellent judge, and I am impressed that
you had experience as a prosecutor as well as a defense lawyer. So
I look forward to looking at that and see where we go from here.
Some of the judges, probably less than 5 percent or so, that I opposed that President Clinton nominated, some of those I opposed,
I was proven right, in my viewsome of which I am not so sure,
and, Judge, I think you are in that category.
I would also like to thank Ms. Smith for being here today. She
is nominated to head the Tax Division. She comes before the Committee with an extensive resume, but one that appears to be lacking in substantive tax experience and criminal law experience. So
I have some concerns in this regard given the volume and complexity of the matters handled by the Tax Division, and we look
forward to exploring that.
Senator SCHUMER. Thank you. Senator Klobuchar has graciously
agreed to make her opening statement when she asks questions,
and so we will give her a little more time.
Now I would like to call on my colleague from New York, Senator
Kirsten Gillibrand, who is doing a great job here in the Senate.
Senator Gillibrand.
PRESENTATION OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT, BY HON. KIRSTEN
E. GILLIBRAND, A U.S. SENATOR FROM THE STATE OF NEW
YORK
Senator GILLIBRAND. Thank you, Senator Schumer, and thank

you, Ranking Member Sessions. I appreciate you holding this hearing and the opportunity to introduce Judge Gerard Lynch today. I
am pleased to be able to speak in support of one of New Yorks finest jurists.
President Obama has chosen one of the countrys outstanding
legal minds with his nomination of Gerard Lynch to the United
States Court of Appeals for the Second Circuit. I had the great
privilege of being a clerk on the Second Circuit for the Honorable
Roger J. Miner, who is now serving senior status, so I hope that
if, indeed, Judge Lynch is confirmed that he will get to serve with
him.
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Gerard Lynch is an accomplished and distinguished jurist whose
experience and erudition make him an excellent nominee for the
United States Court of Appeals for the Second Circuit. His distinguished biography is a study in excellence: A commitment to learning, a commitment to the law, and the actualization of some of the
highest ideals of our country.
Judge Lynch grew up in a working-class neighborhood of Brooklyn. The son of an airline mechanic and a homemaker, Judge
Lynch was the first in his family to attend college. After graduating first in his class from Regis High School, he received his
B.A. from Columbia in 1972, where he was valedictorian. He received his J.D. from Columbia in 1975 and again graduated first
in his class.
Following law school, he clerked for Judge Wilfred Feinberg of
the U.S. Court of Appeals for the Second Circuit from 1975 to 1976,
and for Justice William Brennan on the U.S. Supreme Court from
1976 to 1977. Justice Brennan, as you know, the second longest
serving Justice on the Supreme Court, is also considered one of the
great men and jurists of our time. His decisions have largely stood
the test of time and continue to have a direct effect on our daily
lives. His decisions stood for the rights of the individual against the
immense power of the state.
Judge Lynch in his own life dedicated much of his life to the
same goal in a variety of positions in which he served, including
Assistant U.S. Attorney to the Southern District of New York, Special Counsel for the New York Special Commission to investigate
city contracts, chief counsel for the New York Commission on Government Integrity, associate counsel for the Iran-contra Independent Counsel, chief of the Criminal Division for the Southern
District of New York U.S. Attorneys office, and special counsel for
the Office of Independent Counsel. In all of these positions, his responsibilities were grounded in the concepts of integrity, transparency, and accountability, and in an enduring dedication to the
rule of law.
The importance of educating young students in the law is also of
great importance to Judge Lynch. As a legal scholar and an educator, he spent 9 years on the faculty of Columbia Law School, becoming full professor after only 9 years, and was awarded an endowed chair in 1996. An expert in both criminal law and procedure,
Judge Lynch is the author of significant legal articles on the subject of purpose, structure, function, advantages, and disadvantages
of the RICO statute.
Judge Lynch has served on the United States District Court for
the Southern District of New York for the last 9 years and has
earned the reputation for fairness and toughness. The strength of
his logic and grounding in law is witnessed by the fact that he has
tried over 90 cases to a verdict and rarely has been reversed by the
Second Circuit.
Judge Lynch is held in extremely high regard by his peers and
is widely viewed as one of New Yorks finest jurists. Leading members of the New York legal community testified to his brilliance, his
fairness, his commitment, and his preparation. I enthusiastically
support Judge Lynchs nomination because of his character, integ-
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rity, and intellect. We are so fortunate that we have a jurist such
as Judge Lynch serving the public good in our legal system.
Senator SCHUMER. Well, thank you, Senator Gillibrand, for an
excellent statement, typically, and thank you for being here.
Senator GILLIBRAND. You are welcome.
Senator SCHUMER. Okay. I think we are now ready toI did not
give a long introduction of Mary Smith, so let me just fill in our
membership about her background as well.
Mary Smith is a native of Illinois. She graduated with honors
from the University of Chicago Law School. She clerked also as a
circuit court clerk on the Eleventh Circuit. If confirmed, she is
going to bring to the Justice Department a record of excellence and
professionalism as well as her unique perspective as a woman and
a Native American.
Ms. Smith has an impressive and distinguished legal career over
18 years with substantial experience in the public and private sectors. From 1994 to 2001, she served with distinction in various government positionsDepartment of Justice, Associate Director of
Policy Planning for the White House Domestic Policy Council, and
associate counsel in the White House Counsels Office. She was the
highest-ranking Native American in the White House during the
Clinton administration. She dedicated herself to the improvement
of the legal profession, holding leadership positions with various
national and State bar associations. Her nomination has been
greeted enthusiastically by the legal community, and there is a
long list of enthusiastic greeters.
I want to thank Ms. Smith for coming here and for her willingness to serve.
I also would ask unanimous consent that the statement of her
Senator, Senator Durbin, my friend and colleague, be submitted to
the record, without objection.
Now let me call both our nominees to the witness stand here. I
guess we will call it that. And please remain standing as I administer the oath of office.
Will you both stand and be sworn? Okay. Do you affirm that the
testimony you are about to give before the Committee will be
please raise your right hand. They did not put that here, but let
us do it. Do you affirm that the testimony you are about to give
before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God?
Judge LYNCH. I do.
Ms. SMITH. I do.
Senator SCHUMER. Thank you. You may be seated.
First, I am going to call on Judge Lynch. Please introduce your
family, tell us who they are. It is always nice to see families here.
Then if you have some brief remarks, you may make them. Then
we will call on Mary Smith doing the same. And then we will go
to question.
So, Judge Lynch, you are on.
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STATEMENT OF GERARD E. LYNCH, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SECOND CIRCUIT
Judge LYNCH. Thank you, Mr. Chairman. I want to introduce my

family who are here with me today: My wife of 37 years, Dr. Karen
Marisak, who is a clinical psychologist; and with me also is the
apple of my eye, my son, Christopher, who is graduating from law
school in 2 weeks; and with me and with him is his fiancee, Ms.
Katie Wilson, who starts a Ph.D. program in economics next year.
So I am very grateful to them for being here.
I have no real opening statement other than to thank the President for the great honor that he has done to me in nominating me
for this position; to thank you, Senator Schumer, and Senator Gillibrand for the very kind remarks that you made; to thank the other
Senators for being here, and particularly to thank Senator Sessions
for his courtesy to me in meeting with me yesterday, as he referred
to.
But other than that, I stand prepared to answer any questions
that anyone has.
[The biographical information of Judge Lynch follows:]
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Senator SCHUMER. Thank you, Judge Lynch.
Ms. Smith.
STATEMENT OF MARY L. SMITH, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, TAX DIVISION, U.S. DEPARTMENT OF
JUSTICE
Ms. SMITH. Thank you, Mr. Chairman. It is a great honor to be

before this Committee as the Presidents nominee to be the Assistant Attorney General for the Tax Division at the Department of
Justice. I hold the Tax Division and the Department of Justice in
the highest regard.
Early in my career, I served as a career trial attorney in the
Civil Division at the Department of Justice, and I have the highest
degree of respect for all the career public servants, knowing firsthand how hard they work and how dedicated they are.
The Tax Division is one of the premier litigating Divisions in the
Department of Justice and has enjoyed a long tradition of excellence since its inception by President Roosevelt. If I am so fortunate to have my nomination recommended by this Committee and
confirmed by the Senate, I can assure you that I will devote my full
abilities to continue the Tax Divisions long tradition of excellence.
I am very fortunate today to be joined here by both friends and
family from both Chicago and DC. My mother, Caroline Smith,
along with her good friend, Carol Ruddy, flew here from Chicago
to be here today, and from DC. I have my good friend, Debbie
Premisler, along with her three daughtersYushoda, Sunita, and
Lakshmi. Also, my good friend Nancy Gist and Eric Barron are
here, as well as several members of the Tax Division who I hope
I will be fortunate enough to serve with.
[The biographical information of Ms. Smith follows:]
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Senator SCHUMER. Thank you, Ms. Smith, and we welcome all of
your family and friends, and particularly your Mom. Great to see
you, and I am sure you a very, very proud of your daughter.
Okay, good. So let me ask some questions here. First question for
Gerry Lynch, since he is from Brooklyn. I forgot. What high school
did you go to? This is what Brooklynites ask one another.
Judge LYNCH. I went to Regis High School in Manhattan.
Senator SCHUMER. Regis. Yes, I remember that. Regis is probably
the finest Catholic school in Newwell, I do not want to get myself
in troubleone of the finest Catholic schools in New York State,
really excellent as a school. And where did you live in Brooklyn?
Judge LYNCH. I lived on the Brooklyn-Queens border in Ridgewood.
Senator SCHUMER. Ridgewood. Nice. What street?
Judge LYNCH. 67th Avenue, right near the Fresh Pond Road subway.
Senator SCHUMER. That is really the Queens
Judge LYNCH. That is in the Queens end, yes. Before that,
though, I was born on the Brooklyn side in what was then Bethany
Deaconess Hospital, and I lived on Underdunk Avenue.
Senator SCHUMER. Underdunk Avenue. 67th Road is right near
St. Pancras. That is really Glendale, wouldnt you call it?
Judge LYNCH. Well, 67th Avenue is different from 67th Road.
Senator SCHUMER. Oh, 67th Avenue, Okay.
Judge LYNCH. You know Queens as well as Brooklyn, Senator.
Senator SCHUMER. That was my old congressional district, and
just this SundayI ride my bike all over the city, and so I love to
go ride and see churches. So I went to St. Matthias.
Judge LYNCH. That is my parish.
Senator SCHUMER. Right, and I saw the pastor. He was greeting
the parishioners as they came out. And here is what you would be
happy to know. They had five masses that dayone in English,
one in German, one in Polish, one in Italian, and one in Spanish,
which shows you the diversity of the great Ridgewood neighborhood, and it is beautiful. What a beautiful church. I do not know
the history, how they gotit is a European style church right there
in Ridgewood. It is gorgeous.
I have no moreno.
[Laughter.]
First, Judge Lynch, tell me who your model is of an appellate
judge. Give me somebody you
Judge LYNCH. The judge that I clerked for when I graduated
from law school was Judge Wilfred Feinberg, and I think he is the
model of an appellate judge. He recently received the so-called
Devitt Award, which is a kind of lifetime achievement award for
Federal judges. He is now 89 and still sits as a senior judge, still
with the same intelligence and meticulousness.
But what I learned from him was the judicial craft. He was a
veryand is a very cautiousI will use the past tense often because of when I worked for him.
Senator SCHUMER. Right.
Judge LYNCH. But it is still true today. He is a very careful judge
who alwayswhen I drafted opinions for him, he always wanted to
make sure that any word that was said, any sentence that we said,
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had to be backed up by precedent. I would sometimes say, But,
Judge, isnt that obvious? He would say, Well, but do we really
have to say it then if there is not a precedent to back it up? And
so I learned that kind of craft from him.
Senator SCHUMER. Great. Yes, and he was one of the outstanding
judges. I think my friend Kevin Bain clerked for him several years
before you did. Okay.
Do you believe in judicial restraint? And explain your answer, including your own definition of what judicial restraint means.
Judge LYNCH. Well, I think the principal thing thatthere are
two pieces that I would say are the principal things about judicial
restraint. One is in the ordinary kind of case that does not have
any constitutional dimensions or anything of the sort, judges are to
decide only the issues that are before them, so that quite apart
from respect for the legislature, just in any ordinary case it is very
important that courts sit to decide the dispute that is before them,
not to go beyond that and talk about other broader issues that are
not necessary to the decision of that case. So that is one important
aspect of judicial restraint.
The other is that where constitutional questions are part of the
case, courts should presume that what legislatures do is constitutional. I will speak only on the Federal level to start with. The
Congress is not only a co-equal branch, but it is the branch that
speaks for the people. When there is a law that is adopted by Congress, signed by the President, it is to be expected that both the
Congress and the President have considered constitutional matters
and decided that the law is constitutional.
Now, the court has to make its own decision about a constitutional issue. That is our responsibility. That is our oath. But there
still should be an assumption that what has been done is constitutional, and it should only be overturned if the law is clearly unconstitutional according to the text of the Constitution and the precedents that have been established.
Senator SCHUMER. Thank you.
Now to Ms. Smith. The Tax Division serves as the enforcement
arm, of course, of the IRS. At its helm you would play a large role
in determining governments tax enforcement priorities. How will
you prioritize and allocate resources between civil and criminal enforcement? How do you plan to allocate resources between large
high-profile tax cases and garden variety enforcement actions? And
what is your view of the role of the Tax Division within the Department of Justice?
Ms. SMITH. Thank you, Senator. I guess I will answer the last
part of that question first. I think the Tax Division has an important role within the Department of Justice, and as you mentioned,
Senator, it is the enforcement arm for the IRS, and it serves an important function in that it instills confidence in taxpayers that our
tax system is fair, and the role of the Tax Division is to enforce the
tax laws fairly and consistently.
In terms of prioritizing, it will matter what cases come up. I
know traditionally the Department has about 3,000 civil cases
pending at any given time, has about 1,700 criminal cases, and I
believe the resources will be allocated appropriately. And in terms
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of high-profile cases, every case will get the resources it needs, and
if a case deserves more resources, I will ensure that that happens.
Senator SCHUMER. Let me ask you this: Last week, President
Obama announced a new initiative to crack down on offshore tax
havens. What role do you envision the Tax Division playing in implementing the Presidents plans? Do you anticipate approaching
these issues from a civil or criminal perspective? And how will you
decide?
Ms. SMITH. Senator, these are just proposals that have been
made. As I said, the Tax Divisions role is to enforce the law. If
some of these proposalsif Congress deems it fit to pass these proposals and they are signed into law, we will use our resources accordingly to enforce the laws, if passed, both criminal and civil, in
that area.
Senator SCHUMER. Okay. Thank you. My time has expired.
Let me call on my colleague, Senator Sessions.
Senator SESSIONS. Thank you.
Ms. Smith, on that particular question, there are some real concerns that if we act the way the President is proposing, we could
have a perverse tendency to cause people to move their corporate
headquarters out of the United States. It is such a complex area.
Will you commit to us that, if called upon to evaluate that, you
will give both sides of that issue and make sure the President is
aware of the possible perverse results of some of these proposed
changes?
Ms. SMITH. Yes, Senator. If I am so fortunate enough to be confirmed and we are asked in the Tax Division for our opinion, we
will certainly give it fair consideration. And I have no preconceived
notions other than to enforce our tax laws fairly.
Senator SESSIONS. Well, I am a believer that people ought to pay
their taxes. I try to pay mine. I think most Americans do. And
when people do not, they are cheating not only the government but
their fellow citizens. And I think a good, aggressive Tax Division
is important, and I do not buy into the idea that somehow we
should not respect the tax department or the IRS, who have a
thankless task sometimes.
Judge Lynch, with regard to your actions concerning the individual that was charged with pornography on their computer, had
quite a number of pretty gruesome and explicit pornography images on the computer, you felt that the sentence was too heavy, the
mandatory minimum that Congress had set. Would you just tell us
what you did and how the appeal took place and how you would
justify that since it did appear to be that, as a judge, you were taking a position explicitly contrary to the law?
Judge LYNCH. No, I do not think so, Senator, but I am happy to
explain my actions.
First, in that case, it seems to me that I was entirely respectful
of the government. I proposed to do something that is unusual, but
that in a very recent case, the Second Circuit has now said is something that a district judge may do in an appropriate case, which
is to advise the jury of what the sentencing consequences of their
decision would be. So I put it to the government in a proposed
charge where I told them not only that I was proposing to do that,
but also that I would instruct the jury, as I instruct every jury,
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that if they found guilt beyond a reasonable doubt, they must on
their oath return a guilty verdict.
There was nothing in the charge that encouraged any kind of
nullification. I did not allow any lawyer to argue and did not propose to allow any lawyer to engage in an argument for nullification.
I told the government that I was going to do that, not as any
kind of threat but in order to give them the opportunity that, if
they wished, they could seek review of that decision. They did. The
Second Circuit told me I should not do that, and I did not do that.
I would go on to say that when the defendant was convicted of
these offenses, I did impose what I believed and what the prosecutor and the defense lawyer and the probation department believed was the mandatory sentence that Congress had ordained.
It turned out I was wrong. One embarrassing part of the case to,
I think, the whole legal system is that the statute did not, in fact,
impose a mandatory sentence in the view of the Second Circuit because of a glitch in the wording of the statute, and they sent it
back to me with instructions to impose a sentence under the ordinary guidelines and rules of sentencing and not according to what
we had all thought was the mandatory sentence. So I followed the
directions of the higher court at every turn.
If I may say one other thing, Senator, I should also say I would
certainly understand a hesitation on the part of any member of this
body to confirm a judge that they thought did not appreciate the
seriousness of child pornography. As a prosecutor and as a judge,
I have been forced to look at some of this material. It is not only
repulsive, itthat is not even the issue. It is not about obscenity.
It is about the fact that these images are the record of atrocities
committed against children. And I have no doubt about the seriousness of that offense.
I have only had one other such case. In that case, I gave a gentleman a sentence that will keep him in prison until he is nearly
70 years old. He is now in his mid50s. But in this particular
caseI do not want to re-argue the case, but it was a different situation.
Senator SESSIONS. Well, what is pretty clear is that under what
everyone thought at the time, 10 years was the mandatory sentence, and you personally did not agree with it, and you personally
took a step that I thinkmaybe the Second Circuit subsequently
has changed the law. But at that time, judges were not empowered
to tell what the sentence would be to the jury because that clouds
their decisionmaking process. Their role in the process was to decide the guilt or innocence, and the defendant would then have to
suffer whatever the penalties call for.
So werent you, in effect, showing your personal view that you
felt this was an excessive sentence, overcame the normal processes,
leading to, in a delay, an expensive appeal which the prosecutor
might have capitulated in and given in to your threat and allowed
the case forward, but instead apparently they decided, no, we are
not going to give in to that, we are going to take it up on appeal
which you gave them the right to doand then it was reversed at
some great expense and delay.
Judge LYNCH. Well, the delay was about 2 days of
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Senator SESSIONS. I think that is the way I read it as a prosecutor. I know how a judge can work you over and put you in a
tough position, and it looks like to me the prosecutor said no, and
he stood up. Sometimes you fold up in the face of a good, strong
judge. And this time he said no and prevailed.
Judge LYNCH. Well, Senator, I think if you consulted any of the
U.S. Attorneys who have served in that position while I have been
a judge or any of the United States Attorneys under whom I served
as a Federal prosecutor, I think that they would be unanimously
of the view that I am a fair judge, that I do not threaten prosecutors or browbeat prosecutors, that I do not play games and tricks,
that I do not try to force prosecutors to do things that they do not
want to do or that they do not think is right to do; that I am a
straight shooter and I tell the prosecutor what I plan to do, just
as I tell defense lawyers what I plan to do and give them the opportunity to argue to me that I am mistaken and, if necessary, to
take appeals. And I think anyone in New York would be very surprised at the idea that I would try to browbeat a prosecutor or trick
a prosecutor.
Senator SESSIONS. Well, that is what this was. I mean, you told
them: You will either agree to this kind of sentence, or I am going
to do something that is unprecedented. I am going to tell the jury
what the minimum sentence is, which the prosecutor had a right
to object to, and you forced the prosecutor to choose whether to
knuckle under or appeal, and the prosecutor appealed and reversed
you.
Now, that is what happened. I am not saying that is the only
that a person is not entitled to make an error, and I am not saying
that 10 years might have been too severe in this case. I do not
know the facts. You knew them better than I. I am not criticizing
you for that. But I think on this particular question, you went beyond the normal role of a judge. Wouldnt you agree?
Judge LYNCH. Well, I certainly respect your view of that, Senator, but I would question one thing or one way that you are putting this. I never threatened the prosecutor to agree to this sentence or I will do something. I had suggested to the prosecutor, as
I sometimes dowe have a very large district and a lot of young
prosecutors. And I suggested to the prosecutor that he make sure
that his office was supportive of the position that was being taken
and that he seek review of that. He did. They decided to prosecute
under this statute, and that was fine.
During the trial I suggested that this was something that I was
going to do. There was never any quid pro quo or any idea that
Senator SESSIONS. Didnt you suggest that 4 years you thought
was appropriate?
Judge LYNCH. I do not think I ever said that. That is the sentence that I ultimately gave 2 years later when it came back
Senator SESSIONS. Well, basically you said you felt the sentence
was too heavy as mandated, and you wanted the prosecutor to review the recommendation and seek review by higher officials in the
Department of Justicewhich you have a right to do, I think. I
think that is a healthy thing to do. But they did not agree.
Judge LYNCH. They did not agree. They absolutely did notthere
is no question about that, Senator. And there is no question the
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Second Circuit thought I was wrong, told me so. They have done
it on other occasions.
Senator SESSIONS. But not too many.
Judge LYNCH. Not too many. But if they do, then I have to follow
what they say, and I have always tried to follow what the higher
courts tell me is the law.
Senator SESSIONS. My time is up.
Senator SCHUMER. Senator Klobuchar.
Senator KLOBUCHAR. Thank you very much, Chairman.
Thank you to both of our nominees and their families. I just
wanted to, first of all, acknowledge Ms. Smith, who I am proud to
congratulate, because she is also a fellow graduate of the University of Chicago Law School. I have had a very big University of
Chicago day. I actually introduced Cass Sunstein at his nomination
hearing this morning.
We are in the middle of an economic crisis, Ms. Smith, and I am
eager to hear more about what you think of the role of the Tax Division in ensuring the fair application of the tax laws and enforcing
the laws and bringing those who cheat the laws to justice.
Judge Lynch, you have had a distinguished record on the bench
for the last 10 years, and you were a public servant long before
that as a Federal prosecutor and as counsel to a number of investigative commissions and independent counsels.
I do note, just reading your biography here, that you served as
an Assistant U.S. Attorney and chief of the Criminal Division
under two Republican administrations. And I know you had a good
exchange there with Senator Sessions. I am just going to ask you
if you wanted to clarify. You were saying you wanted to clarify the
difference between the cases, one in which you put someone away
who was a child pornographeror engaged in child pornography
until he was 70 and this case where you felt that a shorter sentence was warranted.
Judge LYNCH. Well, in both cases, the crime, the principal crime,
was transmission of child pornography over the Internet. Neither
of these individuals made the pornography or were in the commercial distribution of pornography. The older man, however, had a
record of pedophilia, certainly had a past history of child abuse. He
also engaged with the undercover officer, who was pretending to be
first a mother and then a child, in seductive behavior and attempting to engage the child ultimately in sexual activities. He made no
pretense of recognizing that he had a problem, either defended or
denied his actions at all times, and seemed to me to be a rather
dangerous individual.
Mr. Pabon-Cruz was 18 years old. He had started engaging in
this collection of images before he was 18 years old. He had no
record of any sexual activity of any kind, as far as anyone knew,
whatsoever. He acknowledged that he had a problem and wanted
to seek treatment for it.
I asked the government at the sentencing, the ultimate sentencing, when I had discretionit did not matter when it was a
mandatory sentence or I thought it was a mandatory sentence. But
I asked the government if they had any information for me about
young people who may be attracted to child pornography, whether
there is scientific evidence that such people pose a danger, whether
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there is any evidence about whether early treatment makes a difference, or whether this is something that is ingrained in somebody
from an early age. And they told me they did not really know; they
did not have any evidence one way or the other. And there may be
such evidence. I do not know. But in that situation it seemed to
me that a lesser sentence was appropriate in that case.
Senator KLOBUCHAR. Well, thank you very much for that explanation.
Ms. Smith, one thing that I have asked a number of the nominees for the Department of Justice is really stemming out of our
own experience in Minnesota where a U.S. Attorney was put in
who was more of a political a municipality. There were some huge
problems with management that resulted in the office. When Attorney General Mukasey came in, he put in a different U.S. Attorney,
and things have been much more calm and under control. And it
always had been a gem of an office, and I saw firsthand the problem of politicizing the office, an office when I was county attorney,
the biggest county in Minnesota, for 8 years I worked extensively
with the U.S. Attorneys Office, and I saw that destruction.
I know there have also been morale issues at the Justice Department, and I wonder if you could just talk briefly about how you see
that as improving and what you see your role will be in that.
Ms. SMITH. Thank you, Senator. I am aware of some of the past
problems at the Department, and I just want to say at the outset,
for the Tax Division and, I guess, across the Department, politics
should play no role in enforcement of our tax laws. I guess I am
happy to say that from some of the past problems that the Tax Division, I think, fared pretty well in that regard. And I know that
there is a large number of outstanding attorneys in the Division,
and I look forward to working with them and maintaining the
highest standards of integrity, as I have a deep appreciation for
that from my time as a career lawyer at the Department.
Senator KLOBUCHAR. Thank you. Could you talk about the role
you see of the Tax Division in combating financial fraud? We are
seeing more and more of these cases, from Bernie Madoff to a number of white-collar cases we are seeing across the country.
Ms. SMITH. Thank you, Senator. Yes, we are in difficult economic
times lately, and I think it is importantthe Division plays an important role in enforcing our tax laws, and they must do so fairly
and consistently so that taxpayers have confidence in the system.
And if I am so confirmed, I know the Department already coordinates with U.S. Attorneys Offices around the country in prosecuting cases, and I look forward to continuing to do that.
Oftentimes, the tax cases are the ones that actually get prosecuted if the evidence is not developed in other aspects, and so I
think the Tax Division plays an important role in doing that.
Senator KLOBUCHAR. I think that is a good point. The other thing
I saw in our State courts was just prosecuting some of these cases,
we had one involved eight airline pilots who were pretending they
lived in another State that did not have income taxes and had post
office boxes there, and our Revenue Department of the State said
they literally had, I do not know, hundredsa lot of money, thousands and thousands and thousands of dollars, hundreds of thousands of dollars come in after that case because it served a deter-
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rent effect. And I know that earlier this year, the Federal Tax Division had a huge success when the Federal district judge accepted
a deferred prosecution agreement between UBS, where UBS agreed
to pay $780 million in fines while acknowledging that it participated in a scheme to defraud the U.S.
Do you believe that this has sent a message to other companies
that might be helping taxpayers to defraud the U.S.? And how significant of a problem do you believe that these offshore tax havens
are?
Ms. SMITH. Yes, thank you, Senator. Just to clarify at the start,
I am not part of the Department so I know no non-public information about the case. But it has received a lot of publicity, and I do
think that part of the role of the Tax Division is tothere are not
unlimited resources, unfortunately, so they have to pick cases that
need to be prosecuted, and sometimes the cases get wide publicity
and they do serve as a deterrent to others, and I hope that will be
the case with the UBS case.
And in terms of offshore tax avoidance, that is a growing problem, and I know the Division has been actively engaged on that,
and I look forward, if confirmed, to continuing that, because I think
that the problem of international tax avoidance is a growing problem, and I look forward to working closely with the IRS and other
folks at Treasury to try to combat that problem.
Senator KLOBUCHAR. Thank you very much.
Senator SCHUMER. I have asked all the questions that I have, but
I am going to call on Senator Sessions for a second round.
Senator SESSIONS. Thank you.
Ms. Smith, I think the Tax Division of the U.S. Department of
Justice is a very important thing. There are 350 lawyers, most of
them career lawyers who are deeply immersed in the complexities
of the U.S. tax law. They have established certain precedents that
they try to adhere to over the years. They decide what kind of
cases need to be defended, what kind of defenses on appeal they
need to make, what kind of defenses not to make. And it is a very
technical matter.
I remember another New Yorker, Rudy Giuliani, when he was
leaving as U.S. Attorney, and he had a different opinion than, I
guess it was, former President Bush had about who should replace
him. And he at one point in exasperation said, Well, I would like
him to appoint somebody who can at least contribute to the discussion every now and then, in reference to a nominee that he
thought had no experience in the work of the U.S. Attorney.
So you have virtually no experience in tax work, it seems to me.
First, would you tell us what tax experience you have? How would
you characterize that as you come into this very important office
with quite a number of superb attorneys?
Ms. SMITH. Thank you, Senator. I have spent the last several
years litigating complex financial litigation, extremely complex. I
worked in-house at Tyco, and I was responsible for the huge,
sprawling, consolidated, multidistrict litigation arising out of the
Kozlowski era, and I came in after the fact to help clean that up
and put the company on the right course.
That case involved many different allegations of security fraud.
There were very complex accounting issues. There were five re-
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statements by the company involved in that litigation, and there
were also some tax issues. And I have to say, Senator, that I delved
in deeply to that and oftentimes knew the facts of the accounting
issues better than most of the people involved in the case. I worked
closely with our accounting experts, and I believe that my financial
background would serve me well in this position.
Senator SESSIONS. Well, admittedly, that is just not much. I usually think that the nominations should be of persons who already
have experience and some years in these areas. I have just got to
tell you, that is troubling to me. I do not know why it would be
necessary to choose someone who does not have a lot of experience
in the area.
What about management experience? Have you had much management experience?
Ms. SMITH. Yes, Senator. When I was at Skadden Arps here in
DC, I used to manage large teams of attorneys and legal assistants,
and also in my role at Tyco, which was a huge litigation, I managed all of our outside counsel and over 100 contract attorneys.
And my role was probably not the traditional in-house counsel role.
I actually was driving the strategy and reviewing all the briefs and
advising on who should be working on what projects. And I assigned personally all of the outside counsel individually to depositions or other matters on the case.
Senator SESSIONS. Are you familiar with the Tax Division standards on illegal tax shelters?
Ms. SMITH. Senator, I have read some things, but as I said, I am
not in the Department yet, so I am sure that I will read more if
I am so confirmed.
Senator SESSIONS. Well, you have a good academic record, and
you have had success in the private sector. That I do not doubt.
But I am just a bit uneasy to have someone with so little experience in this position. I do not have any information that you lack
integrity or a good work ethic, so I just want to raise those questions. I may submit a few written questions to you along that line.
Ms. SMITH. Thank you, Senator.
Senator SESSIONS. Judge Lynch, I do not know that I asked
youwe debated it last time when you did a memorial address for
Justice Brennan, whom you clerked for, and it was always sort of
a significant matter to me that he dissented on every death penalty
case, which I thought was breathtaking, because he declared that
the Eighth Amendment cruel and unusual punishment prohibition
outlawed the death penalty when within the Constitution itself
there are quite a few references to capital crimes, to not taking life
without due process, and every State at the time the Constitution
was adopted had a death penalty, and so did the Federal Government.
So the people who adopted the Constitution had no idea that
someone would take the cruel and unusual punishment language
200 years later and say the Constitution prohibits the death penalty.
Now, we can all disagree on it, but I guesslet me ask youand
you praised him at that memorial address and said that you should
interpret the Constitution, at least Justice Brennan did, in light of
what happens today and not some 18th century textbook, as I re-
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call. So do you mean that an appellate judge is free to take the
Constitution and just give its meaning that has been established
for 200 years a new meaning because it is today and not then?
Judge LYNCH. No, of course not, Senator. The Constitution is a
written document. That is what gives it its power and its legitimacy. That is why, unlike many countries, statutes that are
passed here are subject to judicial review because the people established a Constitution. And it is only the Constitution that they established, the written Constitution, that gives any judge the authority to say that something is unconstitutional. That is not some
free range power of the judge. That is because the Constitution, as
it exists, as it is written, is the law of the land.
What changes is society, not the Constitution, and there are certainly, as we all know, problems that come up in our society that
the Framers had no idea of. Recently, the Supreme Court decided
a case about whethernot that recently anymore. A few years ago.
A case about whether technology that could look inside somebodys
house from outside constituted a search.
Now, James Madison I do not think would have had much
thought about that, of course. But the principle in the Constitution
talked about reasonable and unreasonable searches and seizures.
And a court is going to have to look at the contemporary problems
and apply to that the principles that are adopted in the Constitution. And there is nothing in a dictionary from the 18th century
that is going to help with that.
Of course, we do know what the Framers thought about searches
and seizures, and we should look back to that for guidance in applying it to these new problems.
Senator SESSIONS. Well, I think that is correct. But I do not
thinkand I am not going to ask you to criticize the man who gave
you your job as a law clerk on the U.S. Supreme Court, which is
quite an honor to achieve. But I will. I think that is not the principle he used. This was not a question of high-tech examples of
search and seizure. It was an absolute reversal of the plain textual
language of the Court by twisting one clause and causing it to override a whole bunch of other clauses. Fortunately, no members of
the Court now adhere to that view, but at the time two did, and
many thought the Court may continue that line of reasoning. But,
fortunately, they have drawn back.
Well, those are issues that are important. I think you have to
giveas Professor Van Alstyne of Duke once said, if you respect
the Constitution, really respect it, you will enforce it like it is written, not like you would like it to be. And in the long run, all our
liberties are better protected in that way.
Mr. Chairman, I appreciate your courtesy in allowing me to ramble on. I think these are important questions, and I intend to give
both these nominees a fair evaluation.
Senator SCHUMER. Well, thank you, Senator Sessions, and I appreciate your questions and your desire to be very fair here.
I am going to ask unanimous consent that we submitthere are
33 letters in the record supporting the nomination of Mary Smith.
I would like to pay particular attention or note particularly the letter from Nathan Hochman. He was the former person who occupied
the position for which Mary Smith has been nominated, and it says
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he has complete confidence in her, which I think is a pretty good
recommendation, particularly in light of Senator Sessions legitimately asking the experience you have had in the Division.
If there are no more questions, we are going to hold the record
open for a week so people can submit written questions. We thank
both the witnesses and your families. I am sure they are all proud
of you. And we look forward to considering both of your nominations.
With that, the hearing is adjourned.
[Whereupon, at 3:35 p.m., the Committee was adjourned.]
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NOMINATIONS OF THOMAS MCLELLAN, NOMINEE TO BE DEPUTY DIRECTOR, OFFICE OF

NATIONAL
DRUG
CONTROL
POLICY;
ALEJANDRO MAYORKAS, NOMINEE TO BE
DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION
SERVICES,
DEPARTMENT
OF
HOMELAND
SECURITY;
CHRISTOPHER
SCHROEDER, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL
POLICY, DEPARTMENT OF JUSTICE
WEDNESDAY, JUNE 24, 2009
U.S. SENATE,
JUDICIARY,
Washington, DC.
The Committee met, pursuant to notice, at 10:45 a.m., room SD
226, Dirksen Senate Office Building, Hon. Dianne Feinstein, presiding.
Present: Senators Feinstein, Klobuchar, Kaufman, and Sessions.
COMMITTEE
ON THE
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S.

SENATOR FROM THE STATE OF CALIFORNIA
Senator FEINSTEIN. The meeting of the Judiciary will come to

order, and I want to thank you all for coming today. This is a bit
of an unusual morning because we just had the Articles of Impeachment read on the floor of the Senate, which necessitates the
presence of all Senators, and we will have a cloture vote on a nominee at 11. So its going to be a hearing that will be split. It would
be my intention to begin the hearing and go close to the end of the
vote, and if the staff would be alert and tell us when there are 3
minutes left on the vote, we will then recess and then come back.
I have the honor of introducing the three executive nominees for
todays nomination hearing. It is my hope that this committee and
the Senate will work to confirm them swiftly so that these executives have an opportunity to get to their work.
Our first nominee is Thomas McLellan, who has been nominated
to be Deputy Director of the Office of National Drug Control Policy.
Mr. McLellan is currently CEO of the Treatment Research Institute and Professor of Psychiatry at the University of Pennsylvania
School of Medicine. He previously served as editor-in-chief of The
Journal of Substance Abuse Treatment. Hes been recognized for his
leadership. Hes a recipient of the Life Achievement Award of the
(809)
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American Society of Addiction Medicine. So, I look forward to his
nomination.
The second nominee that we will be hearing from today is
Alejandro Mayorkas, who has been nominated to be Director of the
U.S. Citizenship and Immigration Services at the Department of
Homeland Security. He is currently a litigation partner at
OMelveny & Meyers, and before his tenure in the private sector
Mr. Mayorkas served as a U.S. Attorney for the Central District of
California, and as an Assistant U.S. Attorney for 9 years.
Our final nominee today is Christopher Schroeder who has been
nominated to be Assistant Attorney General at the Office of Legal
Policy in the Department of Justice. Mr. Schroeder is a law professor at Duke and has previously worked as Acting Assistant Attorney General of the Department of Justices Office of Legal Counsel, as Chief Counsel on the Senate Judiciary Committee, and as
Special Nominations Counselor to then-Senator Joe Biden.
The Ranking Member of the Committee, who is Senator Jeff Sessions, is expected to attend, but in the interest of time I do think
we should begin.
It is my understanding that Mr. Kaufmanexcuse me, Senator
Kaufmanwould like to make a few brief introductory remarks.
Senator.
STATEMENT OF HON. EDWARD E. KAUFMAN, A U.S. SENATOR
FROM THE STATE OF DELAWARE
Senator KAUFMAN. Thank you, Madam Chairman. I want to congratulate all three for volunteering to work in the Federal Government and take on some very interesting challenges, but especially
I want to call attention to Chris Schroeder. Chris and I have
worked together for 19 years, teaching a course at Duke for law
students and public policy students on the Congress.
I have never met anyone with more integrity, more intellect,
more principles in my entire life than Chris Schroeder, so I just
wanted to make a special comment on him. The reason Im doing
this is because at 11 we are going to have a vote, and then at 11:30
I have to preside. I also want to say to his family, which Im sure
hell introduce, what a distinguished family.
Its a special week for Chris because his daughter Emily married
Brian on Saturday in an extraordinarily wonderful ceremony, so
its a very special week. Again, I think we are especially privileged
in having all three of you, but its my personal relationship with
Chris Schroeder, to take on this responsibility. Thank you, Madam
Chairman.
Senator FEINSTEIN. Thank you very much, Senator.
Senator, no comment?
Senator KLOBUCHAR. No. Id just like to hear from the nominees.
Thank you, Senator.
Senator FEINSTEIN. Well, theyll be next up.
Senator Hagan was going to be here, but she is not. When she
comes, well be very pleased to hear from her. But if the three
nominees would please come. If you would remain standing and affirm the oath.
[Whereupon, the witnesses were duly sworn.]
Senator FEINSTEIN. Thank you. Please be seated.
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All right. Why dont we begin with Mr. McLellan with an opening
statement, if you will, and then Mr. Mayorkas and Mr. Schroeder.
STATEMENT OF THOMAS MCLELLAN, NOMINEE TO BE DEPUTY
DIRECTOR, OFFICE OF NATIONAL DRUG CONTROL POLICY
Mr. MCLELLAN. Chair Feinstein, other members of the Judiciary

Committee, I come before you seeking your confirmation of my
nomination to the position of Deputy Director, White House Office
of National Drug Control Policy.
I, first, want to say thank you for squeezing this hearing in on
your very busy schedule; I appreciate it.
Senator FEINSTEIN. Thank you.
Mr. MCLELLAN. Id like to acknowledge some of the people that
are important in my life. First, my family. I am here representing
my sister, Bonnie Catone, and colleague, my son Andrew, his wife
Liz, and, importantly, my wife and colleague, Danni Carise. My
family has suffered the pains of addiction, but weve also enjoyed
the benefits of recovery from addiction.
Id also like to acknowledge my research colleagues from the
Treatment Research Institute in Philadelphia. It is their effort,
their intelligence, their tolerance that produced the many accomplishments that ultimately led to my nomination. I appreciate that.
Finally, I would like to thank the other supporters here, my
friends and colleagues from the worlds of policy, treatment, prevention, law enforcement that are here to support me. It means a
great deal. I think it also signifies the importance of the issues
were about to discuss.
So youve read by now that I have 35 years of research experience. Its academic research experience. I am eager to bring that
experience forward to work shoulder-to-shoulder with Director Gil
Kerlikowske and the very fine members of the Office of National
Drug Control Policy that Ive met.
I have much to learn and many to learn from, but I want to say
that Im extremely optimistic. This is a very important time and I
think we can bring the very best evidence-based treatment, prevention, and law enforcement policies this country has seen. I think we
can significantly affect, in a positive way, drug problems in this
country.
With that, Im quite happy to answer any questions you may
have.
[The biographical information of Thomas McLellan follows.]
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Senator FEINSTEIN. Thank you very much, Mr. McLellan.
Mr. Mayorkas.
STATEMENT OF ALEJANDRO MAYORKAS, NOMINEE TO BE DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
DEPARTMENT OF HOMELAND SECURITY
Mr. MAYORKAS. Thank you, Senator.

Senator FEINSTEIN. If youd speak directly into the mic and pull
it close to you. Thank you.
Mr. MAYORKAS. Today I have the extraordinary honor
Senator FEINSTEIN. You have to pull the mic closer to you.
Senator FEINSTEIN. Good. Much better.
Mr. MAYORKAS. Today I have the extraordinary honor of being
before the Senate Judiciary Committee as President Obamas nominee to head the U.S. Citizenship and Immigration Services. It is a
privilege, and I humbly thank you for considering my nomination.
Thank you, Senator. I am very grateful that you are here on
what I hope will be my return to public service. As you know, I am
very grateful for the opportunity I had to serve as an Assistant
U.S. Attorney, and then the U.S. Attorney for the Central District
of California.
It has always been a source of great pride that you, Senator
Feinstein, recommended me to the President to serve as the U.S.
Attorney. Those extraordinary years were formative and formidable
ones, and I thank you for your confidence in me then and again
now.
I have many people to thank today. Many parents wish for their
children a better life than the one they themselves have had. This
is an aspiration difficult to even define for me. My father and
mother sacrificed much to create for me a childhood and a path to
accomplishment, bounded only by my own performance.
Unfortunately, my father was not well enough to travel here
today, but my parents filled my life with three terrific siblings: My
sister Kathy, and my younger brothers, James and Anthony, both
of whom are here today.
I am also blessed to have the support of three wonderful women:
My wife Tanya, my almost 9-year-old daughter Giselle, and my 4year-old daughter Amelia.
Last, I would like to thank my mother. I am sometimes asked
why I work so hard. With any small good I achieve, if I do some
small thing that makes life better for someone else, then I believe
those around me will have met a little bit of my mother, a better
soul and a warmer heart there could never be.
If this Committee and the Senate find me deserving of confirmation, I pledge my every effort to ensure that U.S. CIS fulfills its
mission with energy and focus. Key to this is ensuring clarity of
mission, pursuing robust communication and outreach with Congress and stakeholders, anticipating and planning for future demands, and motivating and retaining personnel.
As you know, I previously had the honor to lead the U.S. Attorneys Office for the Central District of California, an office of 245
Assistant U.S. Attorneys, responsible for the largest Federal judicial district in the Nation, comprised of approximately 180 cities
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with an aggregate population of approximately 18 million people.
I know what it takes and what it means to lead, and what can be
accomplished when the dedicated men and women of a Federal
agency are motivated to do their very best in the service of our
country.
If I am confirmed, I will conduct an overall review of the agency.
As a nominee, I have had an opportunity to engage with officials
in U.S. CIS and to begin in my own mind the task of outlining priorities. First, clarity of mission is critical in enhancing the public
profile of the agency and instilling public confidence in the secure,
fair, and effective administration of our Nations immigration laws.
I am committed to ensuring U.S. CIS delivers high-quality customer service to those who are eligible to receive benefits. Protecting our national security and public safety is a critical component of the U.S. CIS mission, not an afterthought. This means we
must continue to strive to improve the agencys fraud prevention
and detection operations, increase collaboration with ICE and other
law enforcement agencies to respond to fraud, and to improve the
efficiency and accuracy of the E-Verify system.
Second, I believe it is critical to enhance transparency and improve the flow of information from the agency to Congress and the
appropriate stakeholders to ensure those concerned about particular issues understand U.S. CIS actions and are able to enact effective immigration regulations and laws.
Third, we must always look to the future. It is critical to position
U.S. CIS to meet current and future immigration demands. To this
end, we must ensure the successful progress and implementation
of business transformation, increase the efficiency of domestic and
international operations, and improve detection and prevention of
system abuse.
Fourth, developing a motivated workforce is important to ensure
high-quality service, and retaining such a workforce is always a
challenge. If I am confirmed, I commit to doing my very best to review the needs of the U.S. CIS workforce and to implement programs and policies that serve to motivate and retain employees.
As one who was granted citizenship through the beneficence of
our government and by virtue of my familys journey to this country, I understand deeply the gravity, as well as the nobility, of the
mission to administer our immigration laws efficiently and with
fairness, honesty, and integrity. The most important responsibility
of U.S. CIS is its authority to bestow citizenship. As a naturalized
citizen, I have a deep understanding and appreciation of this mission.
My parents, sister and I were once refugees. In 1960, we fled
Cuba. My father lost the country of his birth, and my mother, for
the second time in her young life, was forced to flee a country she
considered home. But our flight to security gave us the gift of this
wonderful new homeland; I know how very fortunate I am.
I am honored to be before you today. I am deeply humbled the
President nominated me to be the Director of the U.S. Citizenship
and Immigration Services, and I thank you for your consideration.
[The biographical information of Alejandro Mayorkas follows.]
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Senator FEINSTEIN. Thank you very much.
Mr. Schroeder.
STATEMENT OF CHRISTOPHER SCHROEDER, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY,
U.S. DEPARTMENT OF JUSTICE
Mr. SCHROEDER. Thank you, Madam Chair, Senator Klobuchar,

other members of the Committee.
If I may, Senator Kaufman indicated my family was here too, if
I could introduce them, briefly, to you.
Senator FEINSTEIN. Please do, by all means.
Mr. SCHROEDER. My wife, Kate Barlett, of 34 years, my eldest
daughter Emily, who, as Senator Kaufman said, was married this
Saturday to our new son-in-law, Brian, and our youngest, Lilly,
who is a constituent of yours, a resident of Berkeley, California
where shes attending law school, and our middle child, Ted
Schroeder, who is a member of Senator Kaufmans staff.
Senator FEINSTEIN. Wonderful.
Mr. SCHROEDER. Its a pleasure to have them here with me
today, and it is an even deeper pleasure and honor to have been
nominated for this position by the President, and if the Senate sees
fit, to then be able to return to the Justice Department, where Ive
worked previously. The Department is an organization I admire
deeply. The professionals and the political appointees there, in my
experience, are people of outstanding ability and integrity. I am
eager to participate in serving the country to give them the best
system of administering justice that we can achieve.
At the same time, Ive worked for this committee before and I appreciate the prerogatives and importance of this institution, as well
as the other bodys prerogatives. I am looking forward, in the position of Assistant Attorney General to the Office of Legal Policy, to
working closely with this Committee and moving the country forward on a number of issues of importance to everybody.
So with that, I will welcome any questions you may have.
[The biographical information of Christopher Schroeder follows.]
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I think well begin the questions. Mr. McLellan, as you know, the
high-intensity drug trafficking areas, called HIDTAs, enhance and
coordinate drug control efforts among various local, State, and Federal agencies. The program provides agencies with coordination,
equipment, technology, and I have found them very effective.
Can you describe what efforts you will take as Deputy Director
to improve the coordination of the HIDTAs along the southwest
border?
Mr. MCLELLAN. Senator, the HIDTAs are a critical part not only
of our supply reduction effort, but I think an integral part as well
of our prevention effort. In turn, the Southwest Border Initiative,
a recent but very important one, I have not been fully briefed upon
yet.
I know that the HIDTA will play an important role in the policies of the many Federal agencies that are already working on that
initiative. As you know, our office successfully defended against an
effort to reduce funding for HIDTAs. We back the HIDTAs and we
expect it will play a very important role in the Southwest Border,
as well as other initiatives.
Senator FEINSTEIN. Just so you know, I am a border State Senator and there is no question but that what is happening in Mexico
is having a deep impact all throughout Americas southwest border,
and therefore the ability to move soundly, aggressively, and legally
to prevent the movement of drugs, and also prevent the movement
of guns from America down to the cartels is very important.
I know that you are probably very much involved on the demand
side of the drug issue, which of course is Americas problem and we
need to address it. However, this other side, because of the killings
and the terrible things that cartels are capable of and their infusion of their assets into our country along the southwest border is
really of critical concern. We have border tunnel after border tunnel now going under the border, moving drugs, also moving people,
and I suspect moving guns.
Mr. MCLELLAN. Yes.
Senator FEINSTEIN. So these HIDTAs on the southwest border, in
my view, should be given the highest priority and I would hope
that you would do so.
Mr. MCLELLAN. Senator, I commit that our office will continue
to rank the HIDTAs at the highest priority. I completely agree with
you. It was a welcome thing to see the Southwest Border Initiative.
If confirmed, I look forward to getting more fully briefed on all of
the aspects of it. As somebody who knows most about demand, I
know its not possible to have an effective demand reduction strategy without effective supply reduction. So, they work hand in hand.
Senator FEINSTEIN. Thank you. Thank you very much.
Mr. Mayorkas, I wanted to ask you a question about children and
immigration raids. There are increasing cases of children and parents, even nursing mothers, separated in the process of ICE going
in and moving a family, the parents of which may well be undocumented but the children may well be American citizens, taking
them into immediate custody and moving them back to their home
in another country.
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Between 1998 and 2007, the United States removed nearly 2.2
million unauthorized aliens, 108,000 of these were parents of
United States citizen children who essentially were left.
So my question is this: How can the Citizen and Immigration
Service work with ICE to keep track of the number of children, including U.S. citizen children, left behind when undocumented parents are detained or deported? What policy guidance would you put
in place to guide CIS officers when providing ICE information on
the deportation of parents?
Mr. MAYORKAS. Thank you very much, Senator, for your question. I know the importance of the issue to you. Senator, I am very
well aware of the difficulties and the tragedies that could befall a
family upon separation of parents and children and the dangers
that children can be placed in should that separation be effected.
I commit to you, Senator, and to this entire Committee that I
will work with personnel in the Department, and specifically with
personnel at ICE under the leadership of John Morton, whom I had
the privilege of working with side-by-side when we both served in
the Department of Justice, to address this issue. I commit to you
that I will work with you, with other members of this Committee,
and your staffs to develop programs that address this issue and
try, to the best of our abilities, in compliance with the law, to avoid
separation that only brings tragedy and danger to others.
Senator FEINSTEIN. Well, I very much appreciate this and I am
not going to forget it. Ever since the Elian Gonzalez case, I think
the issue of the innocent child whos left behind, as well as the innocent child who is a citizen who is left behind and what happens
to that child and what resources are brought to bear is really critical. So I wont forget that.
Now, you stated that you will work to improve fraud prevention
and detection. How do we better detect fraud and take back control
of our immigration system so that we can instill public confidence
in it? There is a great deal of fraud in virtually all programs connected with immigration. What do we do about that?
Mr. MAYORKAS. Thank you, Senator. There certainly is. I believe
the agency, from my preliminary introduction to it, has begun to
implement measures such as a fraud and compliance monitoring
mechanism with respect to the E-Verify system.
I intend, should I be honored with confirmation to the position
which I seek, to conduct an agency review. One of the critical components of that will be a focus on the prevention, detection, and the
ability to address fraud. I will be working with my counterparts,
should I be confirmed, in the Department to ensure the aggressive
prosecution of individuals who are identified and apprehended in
connection with fraud, and to build systems in each and every facet
of our programs to protect the system from fraud so that those individuals who seek, through lawful channels, the benefits of our
immigration efforts, can enjoy them.
Mr. Schroeder, I have a question that is very important to me
as the Chairman of the Senate Select Committee on Intelligence,
and it is this. I know you dont speak for the administration, but
we have been asking, over and over again, for the official view on
several pieces of legislation that we need to mark up and move
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through the Senate. We will mark it up in Intelligence and it will
probably have a sequential referral to this Committee, Judiciary.
This includeswell, you know the State Secrets bill, the Reporter Shield legislation, but thats not exactly what Im talking
about. There are three sunsetting provisions of the PATRIOT Act,
namely the roving wire tap, business records, and lone wolf. We
would like to have the administrations view on whether we reauthorize those three items for an undetermined period of time, or reauthorize them for a limited period of time, or do not authorize one
or all of them. We cant seem to get that information out of the Department of Justice.
Now, the mark-up is coming up in the Intelligence Committee,
so my question is this: If confirmed, will you please be an advocate
for getting decisions out of the Justice Department to the critical
committees that are actually marking up legislation which involves
these items? I mean, we have two right now, Reporter Shield and
State Secrets in this Committee, and we need the views of the administration.
Mr. SCHROEDER. Yes, I will.
Senator FEINSTEIN. Ill hold you to it. Short answer. I wont forget it.
[Laughter.]
Thank you.
And second, do you believe that the laws of armed conflict, the
laws of war, allow for the preventive detention of individuals if Article 3 court has determined that they are enemy combatants or
otherwise meet international standards?
Mr. SCHROEDER. Senator, Im tempted to give you another short
answer, which is, I dont know. But let me expand on that a bit.
I do believe that the laws of war, as I understand themand Im
not an expert in this field and would need to consult, of course,
with other people before giving you a definitive judgmentdo recognize the ability of armed services to retain as prisoners of war
combatants that had been captured on the battlefield for the duration of the conflict. The Supreme Court has recognized that principle.
The difficulty I suppose youre referring to is, whats the status
of someone who is picked up as a terrorist and considered to be
part of al-Qaeda or some other kind of terrorist organization where
were now involved in the war on terror, which may not have a definitive ending. Can we simply detain people indefinitely when
theyre in that status?
I willI willI know this is an important and complicated question, and I just havent studied it myself enough in order
Senator FEINSTEIN. Right.
Mr. SCHROEDER [continuing]. To be able to give you a personal
answer here.
Senator FEINSTEIN. Right.
Mr. SCHROEDER. Let alone be able to speak for the Department,
of which I am not yet a part.
Senator FEINSTEIN. Right. Well, if I might respectfully offer my
view. Dealing with this on this Committee and the Intelligence
Committee, my view is this, that if a detainee is adjudged to be an
enemy combatant either by a military commissionthey can be
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held subject to due process, which would mean a review by a body,
a court or another duly designated body, to review, on a regular
basis, that case. It is my belief that that would meet the strictures
of the Constitution and be an acceptable way to handle it. Were
going to need to solve that very shortly, so we are going to be wanting advice from the Department of Justice and have not received
it up to this point.
Mr. SCHROEDER. Well, again, Senator, I think thats another
issue in which this body deserves the best advice that the executive
branch can offer on complicated questions like this, and I will be
hopefullyin a position to be able to work with this committee and
other people in the Department to be of assistance to you in resolving some of these difficult questions.
Senator FEINSTEIN. Well, thank you very much.
I note that Senator Klobuchar has gone to vote, and I note that
Senator Sessions is voting and will be along shortly. I will go, since
theres just a few minutes left in the vote, and recess the Committee. If you would stand by, we will convene just as fast as I can
get back.
Thank you very much.
[Whereupon, at 11:15 a.m., the Committee was recessed.]
[After Recess 11:29 a.m.]
Senator SESSIONS. Senator Feinstein was heading on down to
vote. I had voted, so she told me to go ahead and get started and
I will do that. I promised to behave and not say anything that shed
have to be here to watch me ask, because she is the person
chairing this hearing.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Senator SESSIONS. Id like to welcome each of you. Ive had an

opportunity to talk to two of you and Ive enjoyed that very much.
Its an important hearing. Youre being nominated for important offices, and Congress, and the Senate particularly, should fulfill its
responsibility of consenting to these appointments. I hope that we
can work together on the issues that are facing the country, drug
matters, national security, immigration, and other matters of quite
large significance that you will be involved in in your agencies.
The Office of Legal Policy is the primary policy advisor to the Attorney General and the Deputy Attorney General. I know last
week, Attorney General Holder testified before the Committee and
I expressed concern about some of the decisions that had been
made to date under his leadership, those that deal with terrorism
and other issues.
He told this Committee his first priority was to work to strengthen the activities of the Federal Government and to protect the
American people from terrorism, so I think that was a good statement. But it does appear to me that, instead of really taking the
lead in these issues, the Attorney General seems to be focusing less
on actual protection and more on a pre-9/11 criminal law mind-set.
We also discussed Guantanamo and some other issues and we did
not discuss, Mr. McLellan, at length on the drug questions that are
important in our country today.
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So, Mr. Schroeder, Im interested to hear your policy goals for
OLP. Youve been a consistent critic of the previous administrations policies on the war on terror and you criticized the Department for invoking the State Secret privilege. Youre joining a Department that has already invoked it three times this year, and
were dealing with legislation concerning that now that I am uneasy about and oppose as written. So, Im concerned about some of
your policy positions there.
Mr. Mayorkas, I enjoyed meeting with you. Youve been the U.S.
Attorney in charge of, perhaps, the largest U.S. Attorneys Office
in the country, one of the largest.
Mr. MAYORKAS. Certainly one of the largest, Senator.
Senator SESSIONS. The Los Angeles U.S. Attorneys Office in
California. Youve dealt with so many of the issues that youll be
dealing with now. I enjoyed our conversation. I feel like you have
good instincts concerning these matters and I believe youre committed to the rule of law, and I look forward to working with you
on that.
Ill just start off with some questions. Mr. McLellan, we did not
get to talk, but I was appointed U.S. Attorney in 1981. Over half
the high school seniors, according to a University of Michigan
study, admitted to using an illegal drug, I think, in the month prior
to that.
President Reagan announced an intolerance policy that went
from the military, who started drug testing and they eliminated
drug use in the military virtually entirely when it was a serious
detriment to the military prior to that.
We started partnership groups throughout the country.
I helped found the Mobile Bay Area Partnership for Youth, the
Coalition for a Drug-Free Mobile, and those organizations were
powerfully effective in dealing with young people. We spent money
in schools to urge kids not to use drugs and the result wasI dont
know how many years ago, but we were at half that number. Half
as many graduating seniors said theyd used an illegal drug as
there were in 1979, 1980. And I believe that thats an important
principle.
Now, part of that is signaled by, I believe, criminal law. I have
supported modifying the criminal penalties for crack cocaine and
some other things I think maybe are stronger than need be and
need balancing and more fairness.
But fundamentally, I am worried about a mood thats out there
that the Obama administration may be acquiescing in, that this is
all a mistake, that we just are too hard on drugs and people are
overreacting to it, that too many people are being convicted and it
doesnt work, and we should just tax it or some other such thing
as that.
Historically, since the founding of the drug czar, ONDCP, your
office has been the one thats stood up against that and said, no,
drugs are detrimental to our country, laws do make a difference.
We need to maintain a position of hostility to drug use in America
and point that out and stand firm, and urge young people not to
participate.
So weve got the medical marijuana enforcement issue. The Associated Press reports Gil Kerlikowske, chief of the ONDCP office,
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has not endorsed the idea of an all-options review of drug policy,
but has suggested scrapping the war on drugs label, and placing
more emphasis on treatment and prevention. Attorney General
Holder has said, Federal authorities will no longer raid medical
marijuana facilities in California, which are against U.S. law, although not against California law. Attorney General Holders position on allowing medical marijuana is contrary to the position
taken by the Drug Enforcement Administration.
According to the AP, the U.S. Drug Enforcement Administration
remains on record against the legalization of medical marijuana,
which it contends has no scientific justification. Legalization of
marijuana, DEA says, no matter how it begins, will come at the
expense of our children and public safety. It will create dependency
and treatment issues and open the door to the use of other drugs,
impaired health, delinquent behavior, and drugged drivers. The
DEA also says, Marijuana is now at its most potent, in part because of refinements in cultivation.
So let me ask you, do you agree with the Drug Enforcement Administrations position that legalization of marijuana, no matter
how it begins, will come at the expense of our children and public
safety ?
Mr. MCLELLAN. Senator, I appreciate your obvious interest in
this very important issue. It may be among the most important in
our administration.
I want to assure you of a couple of things. First of all, this administration has said categorically, marijuana should remain illegal. It should remain Schedule II and it should remain illegal. I
personally, and our office, support that.
Two, you talk about medical marijuana. It is a fact that it has
been looked at for medicinal purposes; most plants have. There is
no other medicine that I know of that is prescribed in smokable
form, and theres a reason for that: Its very difficult to control.
Properly, this is under the jurisdiction of the Food & Drug Administration. We have the safest drugs, safest medical devices in the
country, in the world, because of those policies.
If there are medicinal constituents in marijuana, they should be
extracted, developed, tested for potency and purity in the same way
that all other medicines are. The last time that Im aware that popular sentiment pushed for the introduction of a new medication like
this was Laetrile. Laetrile was thought to be withheld from the
public. In fact, it was later found not to be effective, and indeed,
toxic. We dont want to repeat the mistakes of the past. This is
the
Senator SESSIONS. Are you saying that the FDA does not now
control marijuana? Or does it, in a case like where its declared to
be for medicinal use?
Mr. MCLELLAN. I would just repeat: Marijuana itself should remain illegal. Medicinal
Senator SESSIONS. Well, you present a difficult question when
the State of California
Mr. MCLELLAN. Right.
Senator SESSIONT1 [CONTINUING]. FINDS OTHERWISE, AND MAYBE
OTHER STATES HAVE, TOO. I THINK THATS A MISTAKE. DEA HAS SAID
OVER THE YEARSSEE IF YOU AGREETHAT THERE ARE OTHER MEDI-
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CATIONS THAT WILL DO AS GOOD OR BETTER, AND THAT AS YOU INDICATED, SOME HAVE ARGUED THAT PILLS OR SOME OTHER FORM OF EXTRACTING FROM MARIJUANA WHAT MEDICINAL VALUE IS THERE
COULD BE UTILIZED. BUT THERE SEEMS TO BE A DRIVE TO USE THAT
ARGUMENT TO WEAKEN THE RESISTANCE TO LEGALIZATION OF MARIJUANA. WOULD YOU AGREE?
Mr. MCLELLAN. The position of ONDCP, the position of this ad-
ministration is that marijuana is a Schedule II substance, should

remain illegal. Okay. Any medicine derived from any plant is properly the provision of the Food & Drug Administration and should
undergo testing that way. Thats my official view.
Senator SESSIONS. Have youdo you know if thats so today,
that they are actually doing that?
Mr. MCLELLAN. Im sorry, I didnt hear you.
Senator SESSIONS. Do you know if thats true today, that FDA is
evaluating it?
Mr. MCLELLAN. I know that the National Institutes of Health
has awarded grants to look at some of the constituents in marijuana, and indeed some of those constituents have medicinal properties. I do not know whether the FDA is evaluating any of them.
Senator SESSIONS. Madam Chairman, my time is over. I spent
most of it just in opening remarks, so if I could just follow up.
I would just say to you that I know you come from a treatment
background. Do you personally favor the legalization of marijuana?
Have you made any statements to that effect?
Mr. MCLELLAN. Senator, I do not favor the legalization of marijuana. ONDCP does not favor it, the administration does not favor
it.
Senator SESSIONS. Well, good. I think we need to be clear on
that. All I am saying is, because when you sound an uncertain
trumpet it reduces the societal rejection to these drugs. That was
the big thing in the early 1980s. We had to go from this tolerance
mentality to intolerance. I had a lot of people, young people that
I hired and worked with, whod say, when I was in college, youd
go to a party and people would break out marijuana.
After this happened, if I was at an event and somebody brought
marijuana out, I left and my friends would leave. So, this was a
victory of psychological importance when we said, this is not
healthy for America. Not healthy, and good people shouldnt participate, good people shouldnt be involved in it.
Thank you, Madam Chairman.
I want to turn right away to Senator Klobuchar because she has
a time issue. But just for the record, marijuana is not currently
regulated by the FDA. Medical marijuana is not.
Senator Klobuchar.
Senator KLOBUCHAR. Okay. Thank you very much.
Mr. McLellan, I was a former prosecutor before I had that job
and we had a drug court in our county. I will tell you, when we
first got started, the police really didnt like the drug court. Some
of them still dont, but we made some improvements in terms of
making sure that gun cases, felons in possession of guns, did not
go through that, that violent crime cases were taken out. There
were some real issues. The joke was that a drug dealer could just
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have aif he wanted to use a gun he would have drugs, because
then he could go through drug court.
So we changed that and I think it made a lot of difference for
the reputation of the court, and then of course was allowed for the
good work of drug courts to go on. So I just wondered if I could
hear your view about drug courts and how we can make them effective across the country.
Mr. MCLELLAN. Senator, I am, by training, a researcher. I believe in evidence. The evidence on drug courts is overwhelmingly
positive. It is among the most positively evaluated of all the interventions weve looked at.
Senator KLOBUCHAR. Very good. Thank you.
Then as a person who does analysis and numbers and evidence,
the other thing I hope youll look at is treatment programs. My
State has some of the best treatment programs in the country, but
I am very aware of the fact that there can be varying results from
treatment programs. I dont think, with all the money we spend,
that we do enough in terms of evaluating that and I wondered if
that would be a focus of yours.
Mr. MCLELLAN. Senator, treatment is an issue that I have
thought a lot about. First, while substance use is a preventable behavior, addiction is an illness and it is an illness that is largely genetic and it has biological consequences.
Second, we have verythanks to the research thats been done
in the last 15 to 20 yearseffective, potent medications, behavioral
treatments, and community interventions.
But third, like the rest of health care, issues of financing, delivery, organization, are important to be able to get evidence-based
interventions that work into the hands of people that need them
so badly.
Senator KLOBUCHAR. Okay. Thank you.
Mr. Mayorkas, are those your children there at the end?
Mr. MAYORKAS. Yes, they are, Senator.
Senator KLOBUCHAR. Well, if you can run your office the way
theyve behaved, I think its quite impressive.
[Laughter.]
I especially liked your youngest daughter, who appeared to be
counting the seconds as some of my colleagues asked questions.
[Laughter.]
It was very impressive.
Actually, I have a question about a case that actually is involved
in our State, and it was a sentence commutation that was granted
to Carlos Vignali. I know youre aware of this case. Mr. Vignali was
convicted in 1994 for his role in a drug ring that delivered more
than 800 pounds of cocaine from Los Angeles to Minneapolis. His
sentence was commuted by President Clinton in 2001, and he had
served less than half of his sentence.
As a former prosecutor and someone that has seen firsthand the
effects of drugs in our community, I can tell you there was a lot
of concern from the U.S. Attorney when this sentence was commuted in Minnesota and from our law enforcement officers. Could
you talk about your involvementI think you supported that commutation at the timeand whether you regret it now?
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Mr. MAYORKAS. Thank you very much, Senator. I appreciate and
very well understand your question, both as a former prosecutor
and as a representative of the people of the State of Minnesota who
are the victims of the criminal conduct underlying your question.
Senator, when I received a call from the White House I telephoned the Department of Justice, as protocol dictated, and queried
whether I had permission to return the call. I had never received
a call from the White House before. I was granted that permission
and I made the call.
At the outset of that brief conversation I was asked whether I
recommended the commutation, and I said I did not. It was not my
case. I was not familiar with the facts of the case, and full deference should be accorded the U.S. Attorney for the District of Minnesota whose case it was.
In questions following regarding the concepts of rehabilitation,
the role of family in rehabilitation and the like, I made comments
that clearly were construed, and not unfairly so, to mean that my
opinion leaned in favor of commutation.
Senator, when I was first given the opportunity to comment publicly about my conversation, because that permission was not
granted immediately, I readily and without qualification admitted
that it was a mistake on my part to engage in that conversation
at all. I repeat without qualification: My statement that it was a
mistake to engage in that conversation at all.
Senator KLOBUCHAR. Well, I really appreciate your candor about
this. What do you think you learned from that experience that you
will take to your new job, if confirmed?
Mr. MAYORKAS. Senator, I will, with extra vigilance, be mindful
of the situations Ive placed myself in so that my statements cannot
be misconstrued with a very adverse effect.
Senator KLOBUCHAR. I really appreciate it. Thank you for explaining that.
Senator KLOBUCHAR. Mr. Schroeder, I guess you have Senator
Kaufmans recommendation. He whispered over to me that you
were amazing, so I dont even know if I have any questions for you
as a result of that.
[Laughter.]
But one, I justI bring this up repeatedly to people in the Justice Department just because weve always had a gem of a U.S. Attorneys Office in Minnesota, a political appointment had been
made. Actually, Attorney General Mukasey put someone else in
and sort of cleaned up the situation, and now weve nominated
someone else that I think were going to hear Thursday and their
office is back in shape under the Acting U.S. Attorney, Frank
McGill. I hope that the nomination of his friend and the next U.S.
Attorney from Minnesota will be confirmed.
But I just wondered if you believed that the Office of Legal Policy
will be involved in some of this work that needs to be done with
the morale of the Justice Department, or work that needs to be
done to look at ways to make sure that we correct some of these
abuses from the past.
Mr. SCHROEDER. Thank you, Senator. I dont know what the intentions of the Attorney General
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Senator KLOBUCHAR. You dont have to comment on our
Mr. SCHROEDER [continuing]. Are with respect to how hes going
to staff dealing with this issue. I know that its a top priority for
him to repair any damage that might have been done and going
forward to ensure the highest integrity in those selection processes
and hiring and dismissal decisions.
Senator KLOBUCHAR. All right. Very good. Thank you very much.
I appreciate all of your answers. Thank you. Good luck.
Mr. Schroeder, I have another question and its on a bill that is
directly in front of this committee for mark-up. Its the Reporter
Shield bill. The goal of the bill is to protect journalists from overreaching by the government and to ensure a thriving and free
press.
Obviously the devil is in the details, and one of the details is,
what is the definition of a journalist? Im concerned that the definition is so broad, that it could cover anybody who Tweets regularly
or who posts reports about current events on a Web site like
Facebook, or even sites like Wikileaks that encourage people to disseminate classified information illegally.
My staff has met with your staff on this bill, but Id like to ask
you personally, would you review the bill carefully, and particularly
the definition of journalist, and see if you can make some suggestions to the committee? Now, actually, the mark-up is tomorrow,
but whether well get to that bill, I dont know. But I am very concerned by the definition of who is a journalist, and I would think
that Justice would have an interest in looking at this issue as well.
Mr. SCHROEDER. Thank you, Senator. Im sure the Department
does have an interest in that question. I know the definitional
question was the one that perplexed the Supreme Court when it
faced this issue, and the reason it refused to recognize the constitutional journalist privilege was because of theone of the definitional issues was one of the major concerns.
Of course, Im not at the Department. I dont know what the
and as you say, the devil in these things is in the details. If Im
confirmed and the matter is still pending, I would look very much
forward to working with you and the Committee to try to solve
some of the problems that we face in trying to define a privilege
of this nature.
Senator, do you have questions?
Senator SESSIONS. Yes. Thank you.
Mr. McLellan, treatment has its place, absolutely, in dealing
with a drug and the addition that comes with it. I know that you
have expertise in that, and so does, I guess, our new leader. But
I want you to be a voice within the administration, within the
country, for a value system that says drugs are not good, theyre
dangerous, they lead to addiction and health problems, and death
for many people, and that people should not use them, both because the law says they shouldnt and because its bad to do so.
I just believe this country will suffer more loss than people realize if the voice of your office is not heard loud and clear, because
were in one of those moods now that, well, we should just legalize
more and we shouldnt go through these processes. Thats hard and
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difficult. I noticed, I just saw Mexico may have legalized certain
amounts of cocaine. I think theyll regret that as time goes by. So
I just want to share that with you. Its something Ive spent a lot
of years and a lot of my time, volunteer time, working on. I saw
the progress that came from a consistent, clear message and we
need to maintain that.
Mr. Schroeder, with regard to the Fourth Amendment warrants
dealing with non-U.S. citizens overseas outside the United States,
where there are efforts to secure information or for foreign intelligence and national security reasons, including when non-U.S. persons subject to surveillance communicate with United States citizens in the United States, do you believe that this is legitimate,
and do you believe any provisions of the FISA Amendments Act of
2008 is unconstitutional? Have you expressed previous opinions
about that?
Mr. SCHROEDER. Thank you, Senator Sessions. I havent studied
the FISA amendments, most recent amendments, and havent expressed an opinion on them. With respect to the questions of overseas warrants or constitutional protections for individuals who are
being surveilled overseas, I think those are obviously questions
that require analysis. I havent given those questions that analysis.
I dont have a view about them at the current time.
Senator SESSIONS. Well, you have been highly critical of the
Bush administration, and I guess youve given some thought to
these issues. But it seems to me when you legally are able towell,
if you get a warrant to wire tap a mafia leader and someone you
dont expect calls in, unless its a matter that needs to be mitigated, its perfectly legitimate to listen to that conversation, even
though one party of it was not a part of the warrant application
process. It seems to me quite clear beyond any doubt that overseas
non-U.S. citizens are subject to United States intelligence actions
and activities. Thats the international rule, widely accepted, and
all nations participate in that.
Mr. SCHROEDER. Right.
Senator SESSIONS. It seems to me if you are involved in
surveilling a terrorist, whether its in Europe, Afghanistan, or Pakistan, and they make a call to the United States to somebody, that
may be the most important call theyve made. It may be a call that
would identify a terrorist cell that plans to attack and kill Americans.
Weve had great complaints in this Senate that somehow thats
a violation of an Americas right to not be surveilled without a warrant. I dont think, if the principle of warrants is applied property,
it is. No. 2, its an area where national security should trump it
anyway. Have you expressed an opinion on those things, and do
you have any thoughts youd like to share?
Mr. SCHROEDER. As to whether Ive expressed an opinion, Senator, I dont believe I have. And let me say this. Im not trying to
disagree with you. You may be absolutely right. I just didnt want
to give you a top-of-the-head answer on a complicated question that
I really havent thought about. Most of my writing with respect to
surveillance issues and policies of the Bush administration, let me
make two comments about them. They were addressed fundamen-
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tally to issues that arise with respect to domestic surveillance, and
the criticism that I
Senator SESSIONS. They call that domestic surveillance. Thats
what members of this Senate have done, and they attacked the
Bush administration repeatedly for surveilling Americans without
a warrant, and that most of which are
Mr. SCHROEDER. Overseas?
Senator SESSIONS. No, here. Because if youre surveilling someone legally, according to our laws, in a foreign country and they
call the United States to set up a terrorist attack, were supposed
to not listen to that. Thats all Im telling you. Thats what the debate was about, to me. Maybe there were some other factors involved, but I thought that was an unfair complaint because I
thought at least traditionally that weve always done that, and if
we wanted to change that we should discuss it. I think weve
worked our way through that now with the PATRIOT Act and the
other acts. So, I just want to ask your opinion because I know
youve been a big critic of that, and Ill let that drop.
Thank you, all of you, for your testimony. I look forward to continuing to look at your records. I may submit some further questions, because each of you hold very important offices. Mr.
Mayorkas, I think you understand the critical issues of your office
and I know that you will do your best to comply with the law. If
somebody tries to get you not to, I hope you will stand firm.
Mr. MAYORKAS. Most certainly, Senator.
Senator SESSIONS. Thank you, Madam Chairman.
There are no further questions to come before the Committee, so
the hearing is adjourned. Thank you very much everybody.
[Whereupon, at 12 p.m. the Committee was adjourned.]
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Senate Hearing, 111TH Congress - Confirmation Hearings On Federal Appointments

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S. HRG. 111695, Pt.

CONFIRMATION HEARINGS ON FEDERAL

COMMITTEE ON THE JUDICIARY

APRIL 29, MAY 12, JUNE 24, 2009

Serial No. J1114

mmaher on DSKFW6RHC1PROD with $$_JOB

VerDate Mar 15 2010

01:48 Dec 07, 2010

mmaher on DSKFW6RHC1PROD with $$_JOB

CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

VerDate Mar 15 2010

01:48 Dec 07, 2010

S. HRG. 111695, Pt. 2

CONFIRMATION HEARINGS ON FEDERAL

COMMITTEE ON THE JUDICIARY

APRIL 29, MAY 12, JUNE 24, 2009

Serial No. J1114

mmaher on DSKFW6RHC1PROD with $$_JOB

For sale by the Superintendent of Documents, U.S. Government Printing Office

VerDate Mar 15 2010

01:48 Dec 07, 2010

PATRICK J. LEAHY, Vermont, Chairman

VerDate Nov 24 2008

13:33 Dec 06, 2010

STATEMENT OF THE NOMINEES

QUESTIONS AND ANSWERS

SUBMISSIONS FOR THE RECORD

VerDate Nov 24 2008

13:33 Dec 06, 2010

Camahan, Robin, Missouri Secretary of State, and Trey Grayson, Secretary

VerDate Nov 24 2008

13:33 Dec 06, 2010

Leadership Conference on Civil Rights, ADA Watch, Alliance for Justice,

VerDate Nov 24 2008

13:33 Dec 06, 2010

TUESDAY, MAY 12, 2009

STATEMENT OF THE NOMINEES

QUESTIONS AND ANSWERS

VerDate Nov 24 2008

13:33 Dec 06, 2010

Responses of Mary L. Smith to questions submitted by Senators Sessions,

SUBMISSIONS FOR THE RECORD

VerDate Nov 24 2008

13:33 Dec 06, 2010

WEDNESDAY, JUNE 24, 2009

STATEMENTS OF COMMITTEE MEMBERS

STATEMENT OF THE NOMINEES

QUESTIONS AND ANSWERS

SUBMISSIONS FOR THE RECORD

VerDate Nov 24 2008

13:33 Dec 06, 2010

American Psychological Association, Geoffrey K. Mumford, Associate Eecutive

VerDate Nov 24 2008

13:33 Dec 06, 2010

Kushner, Jeffrey N., Statewide Drug Court Administrator, Supreme Court

ALPHABETICAL LIST OF NOMINEES

VerDate Nov 24 2008